Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of: (i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries; (iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company); (v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes; (vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries; (vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area; (viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries); (ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand; (x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor; (xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 4 contracts
Sources: Merger Agreement (Ready Capital Corp), Merger Agreement (Anworth Mortgage Asset Corp), Merger Agreement (Ready Capital Corp)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete listExcept for this Agreement, as of the date hereof, neither the Company nor any of this Agreementits Subsidiaries is a party to or bound by any agreement, oflease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) each contract would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other than this Agreementcontingent payment obligations (including any “earn-out” or indemnification obligations) that involves a pending arising in connection with the acquisition or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000be material to the Company;
(iiiii) each contract that grants (A) limits in any right material respect either the type of first refusal business in which the Company or right its Subsidiaries (or in which Parent or any of first offer its Subsidiaries after the Effective Time) may engage or that limits the ability manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the CompanyCompany or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment B) is a guarantee by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by of such indebtedness of any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (person other than the Company or a wholly-owned Subsidiary of the Company)Company in excess of $100 million;
(v) each contract grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating is material to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposesthe Company;
(vi) each employment contract was entered into to settle any material litigation and which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without imposes material liability to ongoing obligations on the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity limits or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation to declare or pay dividends or make distributions in respect of the Transactions) to compete in any line of business their capital stock, partner interests, membership interests or with any Person or geographic areaother equity interests;
(viii) each is a material partnership, limited liability company, joint ventureventure or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or strategic alliance agreement to joint venture in which the Company owns, directly or a indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company is a party (other than any such agreement solely between or among wholly-owned Subsidiary of the Company and its wholly owned Subsidiaries)MLP;
(ix) each contract between relates to the acquisition or among the Company disposition of any business or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate assets (other than a wholly owned Subsidiary the purchase and sale of crude oil and products in the Companyordinary course of business consistent with past practice) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is the indemnitor;a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this is a Contract required to be set forth on Section 4.16(a3.21(a)(xi) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected of the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyDisclosure Schedules.
(b) Collectively, the contracts set forth Each such Contract described in Schedule 4.16(aclauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable by the Company or the applicable Subsidiary, subjectin each case, as to enforceability, subject to Creditors’ Rights. Except , except as would not reasonably be expected to havenot, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract Subsidiaries, nor, to the knowledge of the Company, is any other party to any such Company a Material Contract is in breach or violation of any provision of, or in default thereunderunder, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Complete and accurate copies A copy of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have has previously been furnished to or otherwise made available delivered to Parent.
Appears in 4 contracts
Sources: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Occidental Petroleum Corp /De/), Agreement and Plan of Merger (Anadarko Petroleum Corp)
Material Contracts. (a) Schedule 4.16(a5.12(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of:
(i) lists each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their assets, is bound, except for non-customer Contracts pursuant to dispose which the obligations, of either party thereto are, or acquire assets are contemplated to be, $50,000.00 or properties less (each, a “Material Contract”), including without limitation the following Material Contracts:
(i) Contracts with a fair market value in excess any Affiliate, Employee, current or former officer or director of $25,000,000the Company or any Subsidiary or any of their Affiliates;
(ii) each contract that grants Collective bargaining agreements or other Contracts with any right of first refusal labor union or right of first offer or that limits the ability of the Company, association representing any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)Employees;
(iii) each contract relating to outstanding Indebtedness (Bonus, pension, profit sharing, retirement or commitments or guarantees in respect thereof) other forms of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiariesdeferred compensation plans;
(iv) Stock purchase, stock option or any other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)similar plans;
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement Contracts relating to a forward swap or other hedging transaction incurrence of Indebtedness, the making of any typeloans, except for contracts entered into for bona fide hedging purposesHedging Arrangements or otherwise placing an Encumbrance on any portion of the assets of the Company or its Subsidiaries;
(vi) each employment contract Contracts related to which the guaranty of any obligation of any third Person by the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing Contacts or purchase orders for capital expenditures or the acquisition or construction of fixed assets which involve the expenditure of more than $50,000.00;
(viii) Contracts granting any non-competePerson (other then Acquiror) an option or a first offer, exclusivity first refusal or similar type right to purchase or acquire any asset of provision the Company or its Subsidiaries;
(ix) Contracts relating to the lease of any real or personal property, including without limitation any mineral leases;
(x) Contracts that materially restricts create a partnership, joint venture or similar arrangement;
(xi) Contracts that limit the ability freedom of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) Subsidiary to compete in any line of business or with any Person or geographic in any area;
(viiixii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party Contracts (other than Contracts made in the Ordinary Course of Business) which involve the expenditure of more than $50,000.00 in the aggregate or require performance by any such agreement solely between or among party more than one year from the date hereof that, in either case, are not terminable by the Company and its wholly owned Subsidiaries)without penalty on notice of 180 days or less;
(ixxiii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate Contracts (other than a wholly owned Subsidiary the Option and Support Agreements) relating to the voting or any rights or obligations of any Shareholder;
(xiv) Contracts regarding the Company) acquisition, issuance or transfer of any shares of capital stock or other securities of the Company or any of its Subsidiaries Subsidiary, including without limitation any restricted stock agreements, options, warrants or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handescrow agreements;
(xxv) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees Royalty Agreements of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;Subsidiary; or
(xixvi) each vendor, supplier or consulting or similar contract Other Contracts not otherwise described made in this Section 4.16(a) the Ordinary Course of Business that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “are material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company’s Business.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company (or its Subsidiary), enforceable and in full force and effect and to the Company’s Knowledge, each Material Contract will continue to be legal, valid, binding on the other parties thereto, enforceable and in full force and effect on identical terms following the consummation of its Subsidiaries the transactions contemplated by this Agreement and following delivery of any consents or approval contemplated hereby.
(c) The Company has not received any written notice of any default or event that with notice or lapse of time or both would constitute a material default by the Company under any Material Contract.
(d) All of the Contracts to which the Company is a party thereto and, or by which its assets are bound that are required to be described in the knowledge of the Company, each other party Company Reports (or to be filed as exhibits thereto, ) are so described or filed and is are enforceable and in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Royal Gold Inc), Merger Agreement (Battle Mountain Gold Exploration Corp.), Merger Agreement (Royal Gold Inc)
Material Contracts. (a) Except as filed as an exhibit to the Company SEC Filings or as set forth on Schedule 4.16(a) 3.23, there are none of the Company Disclosure Letter sets forth following (each a true and complete list, as of the date of this Agreement, of:“Material Contract”):
(i) each contract Contracts restricting the payment of dividends upon, or the redemption, repurchase or conversion of, the Convertible Preferred Stock or the Common Stock issuable upon conversion thereof;
(ii) joint venture, partnership, limited liability or other similar Contract or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) any Contract relating to the acquisition or disposition of any business, stock or assets that (x) is material to the business of the Company and its Subsidiaries, taken as a whole, other than this Agreementin the ordinary course of business consistent with past practice, or (y) has representations, covenants, escrows, indemnities, purchase price payments, “earn-outs”, adjustments or other obligations that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires are still in effect;
(iv) Contracts containing any covenant (x) limiting the right of the Company or any of its Subsidiaries to dispose engage in any line of business or acquire assets in any geographic area, or properties with a fair market value in excess of $25,000,000;
(iiy) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of prohibiting the Company or any of its Subsidiaries (whether incurredfrom engaging in business with any Person or levying a fine, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, charge or other investment in, any Person (other than the Company or a Subsidiary of the Company)payment for doing so;
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contractcontracts” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act) SEC, excluding any exhibits, schedules and annexes to such material contracts that are not otherwise required to be filed with the SEC, and those agreements and arrangements described in this Section 4.16(aItem 601(b)(10)(iii)) with respect to the Company and its Subsidiaries required to be filed with the SEC (the Material Contracts, together with any lease, binding commitment, option, insurance policy, benefit plan or other contract, agreement, instrument or obligation (whether oral or written) to which the Company or any Subsidiary of its Subsidiaries may be bound, the “Contracts”);
(vi) Contracts relating to indebtedness for borrowed money of the CompanyCompany or any of its Subsidiaries in an amount exceeding $250,000;
(vii) Contracts (other than the Transaction Agreements) that would be or purport to be binding on the Purchasers or any of their Affiliates after the Closing;
(viii) Contracts with any Governmental Entity that imposes any material obligation or restriction on the Company or any of its Subsidiaries, taken as a whole; and
(ix) any material Contract with any current or former director, officer or employee, or with any HRG Affiliate.
(b) Collectively, Each Material Contract is valid and binding on the contracts set forth in Schedule 4.16(a) Company (and/or each such Subsidiary of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto thereto) and, to the knowledge Knowledge of the Company, on each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries that is in breach or default under any Company Contract a party thereto, nor, to the knowledge Knowledge of the Company, is any other party to thereto, is in breach of, or default under, any such Company Contract in Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder. Complete and accurate copies thereunder or would result in the termination thereof or would cause or permit the acceleration or other change of each Company Contract in effect as any right or obligation of the date hereof (including all amendments loss of any benefit thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, except for such failures to be in full force and modifications) effect and such breaches and defaults that would not, individually or in the aggregate, reasonably be expected to have been furnished to or otherwise made available to Parenta Material Adverse Effect.
Appears in 4 contracts
Sources: Securities Purchase Agreement (HC2 Holdings, Inc.), Securities Purchase Agreement (HC2 Holdings, Inc.), Securities Purchase Agreement (Hudson Bay Capital Management LP)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires None of the Company Core MTS Business or any of its Subsidiaries is a party to dispose or bound by:
(A) any agreement for the lease or sublease (whether of real or acquire assets or properties with a fair market value in excess personal property) providing for annual payments of $25,000,000750,000 or more;
(iiB) each contract that grants any right agreement for the purchase of first refusal materials, supplies, goods, services, equipment or right other assets providing for annual payments of first offer $3.0 million or that limits the ability of the Companymore in MCK’s fiscal year 2016, including any Subsidiary of the Company or independent contractor agreements, but excluding any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)employment agreements;
(iiiC) each contract any sales, distribution or other similar agreement providing for the sale of materials, supplies, goods, services, equipment or other assets that provides for annual payments of $5.0 million or more in MCK’s fiscal year 2016;
(D) any equity partnership, joint venture or other similar agreement or arrangement that is material to the Core MTS Business;
(E) any agreement relating to outstanding Indebtedness the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or commitments otherwise) within the three years preceding the date hereof involving aggregate consideration of $250,000 or guarantees more;
(F) any agreement relating to indebtedness for borrowed money, the deferred purchase price of property or capital leases (in respect thereof) of the Company or any of its Subsidiaries (either case, whether incurred, assumed, guaranteed or secured by any asset) in excess involving payment obligations of $15,000,0001,500,000 or more (other than (i) intercompany indebtedness among the MCK Contributed Entities and (ii) intercompany indebtedness among any the MCK Contributed Entity, on the one hand, and MCK or any of its Affiliates (other than the MCK Contributed Entities), on the other hand; provided that, in the case of clause (ii) any such indebtedness shall be paid off in full at or prior to the Closing);
(G) any agreement that restricts, prohibits or impairs (or purports to restrict, prohibit or impair), or has or would reasonably be expected to have the effect of prohibiting, restricting or impairing, any material business practice of the Core MTS Business (or the Company after the Closing), any material acquisition of property by the Core MTS Business (or the Company after the Closing) or limits the freedom, in any material respect, of the Core MTS Business (or the Company after the Closing) to conduct the following activities (i) engage in any line of business, (ii) sell, license or otherwise distribute services or products in any geographic area or (iii) compete with any Person (including, for the avoidance of doubt, any material agreement that includes (I) grants by the Core MTS Business of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (II) any non-competition or non-solicitation restrictions, (III) any rights of first refusal or rights of first offer or (IV) any limits on the use of any of the MCK Owned Intellectual Property and/or MCK Licensed Intellectual Property);
(H) any material agreement (excluding licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms) pursuant to which the Core MTS Business obtains the right to use, or a covenant not to be sued under, any Intellectual Property Right;
(I) any agreement pursuant to which any Person is authorized to use, or receives a covenant not to be sued under, any material MCK Owned Intellectual Property and/or MCK Licensed Intellectual Property, other than those contained within customer agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under business consistent with past practice;
(J) any agreement pursuant to which the Company Core MTS Business has provided or leased, or agreed to provide or lease, any source code containing or embodying any Software included in MCK Owned Intellectual Property and/or MCK Licensed Intellectual Property to a Subsidiary third party (including any contingent right to receive or lease source code containing or embodying any Software included in the MCK Owned Intellectual Property and/or MCK Licensed Intellectual Property, whether pursuant to an escrow arrangement or otherwise);
(K) any agreement relating to the employment, severance, retention or indemnification of any service provider of the Company hasCore MTS Business with a base salary or base compensation in excess of $300,000 per year, directly other than those that can be terminated without liability to the Core MTS Business;
(L) any agreement with or indirectly, made for the benefit of MCK or any advance, loan, extension Affiliate of credit or capital contribution to, or other investment in, any Person MCK with obligations that continue following the Closing (other than the Company or a Subsidiary of the CompanyTransaction Documents);
(vM) each contract that involves any agreement with or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction for the benefit of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company MCK or any Affiliate of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision MCK with obligations that materially restricts continue following the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party Closing (other than the Transaction Documents), other than agreements with MCK or any such agreement solely between Affiliate of MCK entered into on arm’s length terms and in the ordinary course of business for the purchase or among sale of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company healthcare information technology industry on substantially similar terms from non-Affiliated suppliers or providers and its wholly owned Subsidiaries);which provide for annual payments of less than $1.0 million; or
(ixN) each contract between or among the Company or any Subsidiary of the Companyagreement with any Governmental Authority relating to corporate integrity, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officersdeferred prosecution, or employees of the Company Core MTS Business’ or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “MCK’s material contract” (as such term is defined in Item 601(b)(10) of Regulation Snon-K under the Exchange Act) not otherwise described in this Section 4.16(a) compliance with respect to the Company or any Subsidiary of the CompanyHealth Care Laws.
(bii) CollectivelyEach agreement required to be disclosed pursuant to this Section 4.02(i) (each, the contracts set forth in Schedule 4.16(aa “MTI Material Contract”) is a valid and binding agreement of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, Core MTS Business and is in full force and effect, subjectand none of the Core MTS Business, as to enforceabilityor, to Creditors’ Rights. Except as the knowledge of MCK, any other party thereto is in default or breach in any respect under the terms of such MTI Material Contract, except for any such defaults or breaches which would not reasonably be expected to haveexpected, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to be material to the knowledge of the CompanyCore MTS Business, is any other party to any such Company Contract in breach or default thereundertaken as a whole. Complete True and accurate complete copies of each Company Contract in effect as of the date hereof (including MTI Material Contract, and all amendments and modifications) thereto, in each case subject to the redaction of certain information, have been furnished delivered to MCK or otherwise made available to Parentits outside counsel.
Appears in 4 contracts
Sources: Agreement of Contribution and Sale (PF2 SpinCo, Inc.), Agreement of Contribution and Sale (Change Healthcare Inc.), Agreement of Contribution and Sale (Change Healthcare Inc.)
Material Contracts. (a) Schedule 4.16(a) All Contracts of the Company Disclosure Letter sets forth types referred to in clauses (i) through (v) below to which Parent, Merger Sub, GP Merger Sub or any of their Subsidiaries is a true and complete list, party to or bound by are referred to herein as of the date of this Agreement, of:“Parent Material Contracts.”
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described any Contract that (A) expressly imposes any material restriction on the right or ability of Parent or any of its Subsidiaries to compete with any other Person or acquire or dispose of the securities of any other Person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of Parent or any of its Subsidiaries in this Section 4.16(aa material manner;
(iii) with respect any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness for borrowed money of Parent or any of its Subsidiaries in an amount in excess of $25.0 million, other than such indebtedness for borrowed money among Parent and its wholly owned Subsidiaries;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the Company formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between Parent and its Subsidiaries or among Parent’s Subsidiaries; or
(v) any Contract expressly limiting or restricting the ability of Parent or any Subsidiary of its Subsidiaries to make distributions or declare or pay dividends in respect of their Equity Interests. Except for this Agreement, the Contracts filed as exhibits to the Parent SEC Documents as of the Companydate of this Agreement, and any Contract that constitutes a Parent Material Contract under Section 4.19(a)(ii) as a result of dedication or delivery point requirements in such Contract, the Material Contracts are set forth in Section 4.19 of the Parent Disclosure Schedule.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Parent Material Adverse Effect, (i) neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any Parent Material Contract, (ii) no other party to any Parent Material Contract, to the Knowledge of Parent, is in breach of or default under the terms of any Parent Material Contract, (iii) each Company Parent Material Contract is legal, valid, a valid and binding and enforceable in accordance with its terms on obligation of Parent or the Company and each Subsidiary of its Subsidiaries Parent that is a party thereto and, to the knowledge Knowledge of the CompanyParent, of each other party thereto, and is in full force and effect, subject, as subject to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Equitable Exceptions and (iv) Parent and each of its Subsidiaries is in breach or default has performed all obligations required to be performed by it to date under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentParent Material Contract.
Appears in 4 contracts
Sources: Merger Agreement (Crestwood Equity Partners LP), Merger Agreement (Oasis Midstream Partners LP), Merger Agreement (Crestwood Equity Partners LP)
Material Contracts. (a) Schedule 4.16(aExcept for contracts listed in Section 4.12(a) of the Company Disclosure Letter sets forth a true and complete listor filed as exhibits to the Company SEC Filings, as of the date of this Agreement, ofneither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(ii) obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $250,000 and is not cancelable within ninety (90) days without material penalty to the Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business;
(iv) other than the Company Charter and the Company Bylaws, is an agreement which obligates the Company or any Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary is the indemnitor;
(v) constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount as of the date hereof greater than $1,000,000;
(vi) would prohibit or materially delay the consummation of the Merger as contemplated by this Agreement;
(vii) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease, including without limitation a ground lease affecting a Company Property) with a fair market value in excess of $25,000,0001,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Company Lease, including without limitation a ground lease affecting a Company Property;
(iiviii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposestransaction;
(viix) each employment contract to which sets forth the Company operational terms of a joint venture, partnership, limited liability company with a Third Party member or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability strategic alliance of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaCompany Subsidiary;
(viiix) each partnership, joint venture, limited liability company or strategic alliance agreement constitutes a loan to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate Person (other than a wholly owned Company Subsidiary) by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of Company Properties or the Companyfunding of improvements to Company Properties) in an amount in excess of $1,000,000; or
(xi) requires the payment of commissions (including leasing commissions or brokerage fees) or tenant improvements costs, allowances, or other concessions, in either case in an amount in excess of $10,000. Each contract (i) listed in Section 4.12(a) of the Company Disclosure Letter or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (ii) filed as such terms are defined in Rule 12b-2 and Rule 16a-1 an exhibit to the Company SEC Filings as of the Exchange Act) or of the Company Managerdate hereof, on the other hand;
(x) in each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant case to which the Company or any of its Subsidiaries Company Subsidiary is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (bound as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companydate hereof is referred to herein as a “Company Material Contract”.
(b) CollectivelyExcept as, individually or in the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as as, individually or in the aggregate, have not had and would not reasonably be expected to have, a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of the Company or any Company Subsidiary, nor, to the knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Company Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default under any Company Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, neither . Neither the Company nor any Company Subsidiary has received notice of its Subsidiaries is in breach any violation or default under any Company Contract norMaterial Contract, to the knowledge except as set forth in Section 4.12(b) of the CompanyCompany Disclosure Letter and such violations or defaults that would not, is any other party individually or in the aggregate, reasonably be expected to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 4 contracts
Sources: Merger Agreement (Signature Office Reit Inc), Merger Agreement (Signature Office Reit Inc), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement, the Company Disclosure Letter sets forth a true Benefit Plans and complete listagreements filed as exhibits to the Company SEC Documents, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described in this Section 4.16(aany Contract that (A) with respect to expressly imposes any material restriction on the right or ability of the Company or any Subsidiary of its Subsidiaries to compete with any other person or acquire or dispose of the Company.
securities of any other person or (bB) Collectively, contains an exclusivity or “most favored nation” clause that restricts the contracts set forth in Schedule 4.16(a) business of the Company Disclosure Letter are herein referred or any of its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $25 million;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vi) any acquisition Contract that contains “Company Contracts.earn out” Except as would not or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to have, individually or result in payments after the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on date hereof by the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach excess of $25 million; and
(vii) any material lease or default under any sublease with respect to a Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentLeased Real Property.
Appears in 4 contracts
Sources: Merger Agreement (SemGroup Corp), Agreement and Plan of Merger (Energy Transfer LP), Merger Agreement
Material Contracts. (a) Schedule 4.16(a) Each of the Company Disclosure Letter sets forth following contracts to which the Partnership or any of its Subsidiaries is a true and complete list, as of party in effect on the date of this Agreement, ofother than a Partnership Employee Benefit Plan, is referred to as a “Partnership Material Agreement”:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC), including any Partnership Material Agreement filed as an exhibit in the Partnership SEC Documents;
(ii) not otherwise described each natural gas transportation, gathering, treating, processing or other contract, each natural gas liquids fractionation, transportation, purchase, sales or storage contract and each natural gas purchase contract that during the 12 months ended June 30, 2014 individually involved, or is reasonably expected in the future to involve, annual revenues received by or payments made by the Partnership and its Subsidiaries in excess of $25,000,000 in the aggregate;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Partnership or any of its Subsidiaries in an amount in excess of $25,000,000;
(iv) each contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value, or requiring the payment of an annual amount by the Partnership or any of its Subsidiaries, in excess of $25,000,000;
(v) each contract that provides for indemnification by the Partnership or any of its Subsidiaries that remains in effect as of the date of this Section 4.16(a) Agreement with respect to liabilities in connection with the Company Partnership’s or any Subsidiary of its Subsidiaries’ previous sales of the CompanyPartnership’s or any of its Subsidiaries’ business, assets or properties in excess of $25,000,000;
(vi) each contract that (A) contains a non-compete or similar type of provision that, following the Closing, by virtue of Parent becoming Affiliated with the Partnership as a result of this transaction, would by its terms materially restrict the ability of Parent to compete in any line of business or with any Person or in any geographic area during any period of time after the Closing, (B) imposes any material restriction on the right or ability of the Partnership or any of its Subsidiaries to compete with any other person or acquire or dispose of the securities of another person or (C) contains an exclusivity or “most favored nation” clause that restricts the business of the Partnership or any of its Subsidiaries in a material manner;
(vii) each contract involving the pending acquisition or sale of (or option to purchase or sell) the assets or properties of the Partnership or its Subsidiaries in excess of $25,000,000;
(viii) each material partnership, joint venture or strategic alliance agreement (“Joint Venture Agreements”); and
(ix) each contract expressly limiting or restricting the ability of the Partnership or its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be.
(b) Collectively, the contracts Except as set forth in Schedule 4.16(a) Section 5.12 of the Company Partnership Disclosure Letter are herein referred Schedules, immediately following the Effective Time, neither the Partnership nor Partnership GP will have any liability to any third party under any contract with any of the Spin-Off Companies, other than the Transaction Agreements, the Ancillary Agreements (as defined in the “Company ContractsSeparation Agreement) and contracts or agreements that will be assumed by the Spin-Off Companies or their Subsidiaries or for which SpinCo has agreed to indemnify the Partnership, in each case, pursuant to the Separation Agreement).”
(c) Except to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights generally and by general principles of equity, and provided that any indemnity, contribution and exoneration provisions contained in any such Partnership Material Agreement may be limited by applicable Law and public policy, each of the Partnership Material Agreements (i) constitutes the valid and binding obligation of the Partnership and, to the Knowledge of the Partnership, constitutes the valid and binding obligation of the other parties thereto and (ii) is in full force and effect as of the date of this Agreement, in each case unless the failure to be so would not reasonably be expected to havenot, individually or in the aggregate, be reasonably expected to have a Company Partnership Material Adverse Effect.
(d) There is not under any Partnership Material Agreement, each Company Contract is legalany default or event which, validwith notice or lapse of time or both, binding and enforceable in accordance with its terms would constitute a default on the Company and each part of its Subsidiaries that is a party thereto and, to the knowledge any of the Company, each other party parties thereto, and is or any notice of termination, cancellation or material modification, in full force and effecteach case, subjectexcept such events of default, other events, notices or modifications as to enforceability, to Creditors’ Rights. Except as which requisite waivers or consents have been obtained or which would not reasonably be expected to havenot, individually or in the aggregate, be reasonably expected to have a Company Partnership Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 4 contracts
Sources: Merger Agreement (Targa Resources Corp.), Merger Agreement (Atlas Energy, L.P.), Merger Agreement (Atlas Pipeline Partners Lp)
Material Contracts. (a) Schedule 4.16(aExcept as set forth in Section 4.13(a) of the Company Disclosure Letter sets forth Schedule or specifically approved by Purchaser under Section 6.1, no Seller (in connection with the Business) and no Purchased Entity is a true and complete list, as of the date of this Agreement, of:
party to or bound by any: (i) each contract (other than this Agreement) Contract that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “be filed by Honeywell as a material contract” (as such term is defined in contract pursuant to Item 601(b)(10) of Regulation S-K under of the Securities and Exchange ActCommission (including Contracts relating to compensation of executive officers); (ii) Contract containing covenants not otherwise described to compete in this Section 4.16(aany line of business, industry or geographical area restricting the Business; (iii) Contract which creates a partnership or joint venture or similar arrangement between any Seller or Purchased Entity and another Person or any options, rights (preemptive or otherwise), warrants, calls, convertible securities or commitments or any other agreements or arrangements with respect to any equity securities of the Company Purchased Entities; (iv) indenture, letters of credit, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or agreement providing for Indebtedness or any Subsidiary Encumbrance (other than a Permitted Encumbrance) on any assets of the CompanyPurchased Entities in an amount exceeding $100,000; (v) Contract for the sale of any material Purchased Assets or material assets of the Purchased Entities, including any real property, after the date hereof (other than inventory in the ordinary course of business consistent with past practice); (vi) collective bargaining agreement, employee association agreement or other agreement with any labor union, employee representative group, works council or similar collection of employees; (vii) consulting agreement, management agreement, advisory agreement, employment agreement, severance agreement, retention agreement or change-of-control agreement, in each case providing for payments in excess of $100,000 in any fiscal year; (viii) Contract between any Seller or Purchased Entity, on the one hand, and any of Honeywell or its Affiliates or Subsidiaries or any of its or their officers or directors or entities in which they have a controlling interest (other than Contracts solely between the Purchased Entities or between any Purchased Entity and its Subsidiaries), on the other hand (other than ordinary course trade payables and trade receivables negotiated on an arms’ length basis); (ix) Contract under which any Seller or Purchased Entity has made payments in excess of $250,000 in the last fiscal year or anticipates making payments in excess of $250,000 in the current fiscal year or of more than $500,000 over the life of the Contract (other than purchase orders or invoices entered into in the ordinary course of business consistent with past practice); (x) Contract containing any material license of, or any option to assign or purchase, any material Intellectual Property (excluding, however, licenses of commercially available Software); (xi) Contract under which any Seller or Purchased Entity received payments in excess of $250,000 in the last fiscal year or anticipates receiving payments in excess of $250,000 in the current fiscal year or of more than $500,000 over the life of the Contract (other than sales orders or invoices entered into in the ordinary course of business consistent with past practice); (xii) Contract involving any Key Customers or Key Suppliers, other than purchase orders and sales orders in the ordinary course of business; (xiii) lease, sublease, or license of any Leased Real Property, material personal property or other material tangible assets; or (xiv) Contract involving the acquisition of the business or stock (or, to the extent constituting a going-concern business, assets or other properties) of any other Person since December 31, 2007. Each such contract described in clauses (i)-(xiv) is referred to herein as a “Material Contract.”
(b) Collectively, the contracts Except as set forth in Schedule 4.16(aSection 4.13(b) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually Schedule (i) no Seller or in the aggregate, a Company Material Adverse Effect, each Company Contract Purchased Entity is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto (and, to the knowledge Knowledge of the CompanySellers, each no other party theretois) in material breach of or default under any Material Contract, (ii) no Seller or Purchased Entity has received (A) any written or, to the Knowledge of the Sellers, oral notice or claim of material default under any Material Contract, or (B) any written or, to the Knowledge of the Sellers, oral notice of an intention to terminate, not renew or challenge the validity or enforceability of any Material Contract (other than Contracts with Key Customers or Key Suppliers, as to which this notice shall be governed by Section 4.14), (iii) to the Knowledge of the Sellers, no event has occurred that, with or without notice or lapse of time or both, would result in a material breach or default under any Material Contract, and (iv) each of the Material Contracts is in full force and effect, subjectis the valid, binding and enforceable obligation of the Sellers or Purchased Entities, and will not be subject to termination solely as a result of the sale of the Business pursuant to enforceabilitythis Agreement, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, and to the knowledge Knowledge of the CompanySellers, is any of the other party parties thereto. Honeywell has Made Available to any such Company Contract in breach or default thereunder. Complete Purchaser true and accurate complete copies of each Company Contract in effect as of the date hereof (Material Contract, including all amendments and modifications) have been furnished to material amendments, waivers, exhibits, schedules or otherwise made available to Parentattachments thereto.
Appears in 4 contracts
Sources: Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement (Sensata Technologies Holding N.V.), Asset and Stock Purchase Agreement (Sensata Technologies B.V.)
Material Contracts. (a) Schedule 4.16(aExcept (x) of the Company Disclosure Letter sets forth a true and complete list, as of for Contracts entered into after the date of this Agreement, of:
(iy) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than for intercompany agreements solely between or among the Company and its wholly owned Subsidiaries;
Purchaser (iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any that shall be terminated as of their respective “associates” or “immediate family” members prior to the Closing Date in accordance with Section 6.7 or (z) as such terms are defined set forth in Rule 12b-2 and Rule 16a-1 Section 5.13(a) of the Exchange Act) or of the Company ManagerPurchaser Parent Disclosure Letter, on the other hand;
(x) each contract that obligates the Company or neither Purchaser Parent nor any of its Subsidiaries Affiliates is a party to indemnify or bound by any past or present directors, officers, or employees Contract in effect as of the Company date hereof that is material to Purchaser or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
Purchaser Business, taken as a whole (xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyPurchaser Material Contract”).
(b) Collectively, the contracts Except as set forth in Schedule 4.16(aSection 5.13(b) of the Company Purchaser Parent Disclosure Letter are herein referred to as the “Company Contracts.” Except Letter, (i) except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effectbe materially adverse to Purchaser or the Purchaser Business, each Company Purchaser Material Contract is legal, valid, valid and binding and enforceable in accordance with on Purchaser or its terms on the Company and each of its Subsidiaries Subsidiary that is a party thereto and, to the knowledge Knowledge of the CompanyPurchaser Parent, each other party thereto, and is in full force and effect, subjectexcept as enforcement may be limited by bankruptcy, as to enforceabilityinsolvency, reorganization, fraudulent conveyance, moratorium or similar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law), and (ii) neither Purchaser Parent nor any of its Affiliates or, to Creditors’ Rights. Except the Knowledge of Purchaser Parent, any other party thereto, is in breach of, or default under, any such Purchaser Material Contract, except for such breaches or defaults as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, neither be materially adverse to Purchaser or the Company Purchaser Business. Neither Purchaser nor any of its Subsidiaries is in breach a party to or default under bound by any Company Contract nor, to the knowledge that contains any non-compete or similar provision that would materially limit or impair Seller Parent or any of the Company, is any other party Retained Subsidiaries’ ability to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as operate the Retained Businesses after the Closing.
(c) Section 5.13(c) of the date hereof (including Purchaser Parent Disclosure Letter lists all amendments and modifications) have been furnished to or otherwise made available to Parentmaterial Purchaser Related Party Contracts.
Appears in 4 contracts
Sources: Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Glaxosmithkline PLC)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete listExcept for this Agreement, as of the date of this Agreement, of:
neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding (i) each contract any Hydrocarbon Contract (other than this Agreementas defined above but disregarding any materiality qualifiers in such definition) that involves is a pending lease, easement or contemplated merger, business combination, acquisition, purchase, sale other instrument constituting the chain of title to the properties and assets onshore in the United States owned or divestiture that requires held by the Company or any of its Subsidiaries and (ii) any Company Benefit Plan) (each, a “Contract”) that:
(i) would be required to dispose be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of or acquire assets or properties with a fair market value in excess Regulation S-K of $25,000,000the SEC);
(ii) each contract includes any contingent payment obligations or similar payment obligations (including any “earn-out” obligations) that grants would require payments to any right of first refusal or right of first offer or that limits person (other than the ability Company, a wholly-owned Subsidiary of the Company, Parent, or any wholly-owned Subsidiary of the Company Parent) arising in connection with the acquisition or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment disposition by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries of any business which payment obligations would reasonably be expected to result in future payments by the Company or its Subsidiaries that exceed, individually or in the aggregate, $100 million;
(whether incurrediii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), assumed(B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, guaranteed after the Effective Time, Parent or secured by its Subsidiaries or (C) grants “most favored nation” status with respect to any asset) in excess material obligations that, after the Effective Time, would apply to Parent or any of $15,000,000its Subsidiaries, other than agreements solely among including the Company and its wholly Subsidiaries, and would run in favor of any Person (other than the Company, a wholly-owned SubsidiariesSubsidiary of the Company, Parent, or any wholly-owned Subsidiary of Parent);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract, or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million (excluding any government-mandated or state-wide bonds or guarantees) or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than contracts entered into in the ordinary course of business, each contract under which the Company or a wholly-owned Subsidiary of the Company hasin excess of $100 million (excluding any government-mandated or state-wide bonds or guarantees);
(v) grants (A) rights of first refusal, directly rights of first negotiation or indirectly, made any advance, loan, extension of credit or capital contribution tosimilar rights, or other investment in(B) puts, calls or similar rights, to any Person person (other than the Company or a wholly-owned Subsidiary of the Company) with respect to any asset that is material to the Company; provided that, in each case of (A) and (B);
, with respect to any Hydrocarbon Contract (vas defined above but disregarding any materiality qualifiers in such definition) each contract related to any properties or assets owned or held by the Company or any of its Subsidiaries, only to the extent that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposessuch rights would be triggered by the Transactions;
(vi) each employment contract was entered into to settle any material litigation and which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without imposes material liability to ongoing obligations on the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity limits or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation to declare or pay dividends or make distributions in respect of the Transactions) to compete in any line of business their capital stock, partner interests, membership interests or with any Person or geographic areaother equity interests;
(viii) each is a partnership, limited liability company, joint ventureventure or other similar agreement or arrangement, in each case that is material to the Company, relating to the formation, creation, operation, management or control of any partnership, limited liability company or strategic alliance agreement to joint venture in which the Company owns, directly or a indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest capital in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)Company;
(ix) each contract between relates to the acquisition or among the Company disposition of any business or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate assets (other than a wholly owned Subsidiary the purchase and sale of Hydrocarbons and products in the Companyordinary course of business consistent with past practice) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) is a material joint operating agreement (JOA) in each of the indemnitorgeographic regions set forth in Section 3.21(a)(x) of the Company Disclosure Schedules (provided that, for these purposes, “material” shall mean material to the Company and its Subsidiaries with respect to their operations in such geographic region);
(xi) each vendoris a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules (such Contracts, supplier the “Specified Contracts”);
(xii) is a Contract providing for indemnification of any officer or consulting or similar contract not otherwise described in this Section 4.16(a) that director of (A) cannot the Company or (B) any of its Significant Subsidiaries (excluding the MLP and its Subsidiaries); or
(xiii) is any confidentiality agreement or standstill agreement the Company has entered into with any third party (or any agent thereof) that is in effect on the date of this Agreement containing any exclusivity or standstill provisions that are or will be voluntarily terminated pursuant to binding on the Company, any of its terms within sixty (60) days Subsidiaries or, after the Effective Time and (B) under which it is reasonably expected Time, Parent or any of its Subsidiaries, including, after the Effective Time, the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanySubsidiaries.
(b) Collectively, the contracts set forth Each such Contract described in Schedule 4.16(aclauses (i) through (xii) and not (xiii) above is referred to herein as a “Material Contract.” Each Material Contract is a valid and binding obligation of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable by the Company or the applicable Subsidiary, subjectin each case, as to enforceability, subject to Creditors’ Rights. Except , except as would not reasonably be expected to havenot, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract Subsidiaries, nor, to the knowledge of the Company, is any other party to any such Company a Material Contract is in breach or violation of any provision of, or in default thereunderunder, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Complete and accurate copies A copy of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have has previously been furnished to or otherwise made available to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Material Contracts. (a) Schedule 4.16(aExcept for (x) of the Company Disclosure Letter sets forth a true Contracts that do not constitute Spinco Assets or Spinco Liabilities, and complete list(y) any Contract that is an Additional Transfer Document, as of the date hereof, none of this Agreementthe Pluto Entities (with respect to the Spinco Business) nor any of the Spinco Entities are parties to or otherwise bound by or subject to (Contracts of the following types, of:together with the Spinco Licenses, the “Spinco Material Contracts”):
(i) each contract (other than this Agreement) that involves any such Contract solely between Spinco Entities, any partnership, joint venture, strategic alliance, license or research and development project Contract, in each case, which is material to the Spinco Business (taken as a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000whole);
(ii) each contract that grants any right of first refusal or right of first offer or that limits Contracts containing (A) a covenant materially restricting the ability of any Pluto Entity (with respect to the Company, any Subsidiary of the Company Spinco Business) or any Spinco Entity to engage in any line of their respective Affiliates business in any geographic area or to owncompete with any Person, operateto market any product or to solicit customers or (B) a provision granting the other party exclusivity or similar rights, sellin each case of clauses (A) and (B), transferthat would, pledge or otherwise dispose of any businessesafter giving effect to the Combination, securities or assets materially impact the Spinco Business (other than provisions requiring notice of or consent to assignment by any counterparty theretotaken as a whole);
(iii) each contract other than any such Contract solely between Spinco Entities, any Contract restricting Spinco from (A) paying any dividends, (B) making any other distributions to its stockholders or (C) repurchasing or redeeming shares of Spinco Common Stock;
(iv) any acquisition or divestiture Contract or licensing agreement that contains continuing financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations other than royalty payments) that would reasonably be expected to result in the receipt or making by any Pluto Entity (with respect to the Spinco Business) or any Spinco Entity of future payments in excess of $100 million;
(v) any Contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries Spinco Entities (whether incurred, assumed, guaranteed or secured by any asset) ), in each case in a principal amount in excess of $15,000,000100 million, other than agreements (A) Contracts solely among the Company Spinco Entities or a guarantee by any Spinco Entity of Indebtedness of another Spinco Entity and its wholly owned Subsidiaries;
(ivB) other than contracts financial guarantees entered into in the ordinary course of businessbusiness consistent with past practice not exceeding $100 million, each contract under which individually or in the Company aggregate (other than surety or a Subsidiary of the Company hasperformance bonds, directly or indirectly, made any advance, loan, extension letters of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts similar agreements entered into for bona fide hedging purposesin the ordinary course of business consistent with past practice in each case to the extent not drawn upon);
(vi) each employment contract to which the Company or a Subsidiary any Spinco Leases set forth on Section 6.18(b) of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its SubsidiariesSpinco Disclosure Schedule;
(vii) each contract containing any non-competeContract that relates to any swap, exclusivity forward, futures, or other similar type of provision that materially restricts the ability derivative transaction with a notional value as of the Company or any date of its Subsidiaries (including Parent upon consummation this Agreement in excess of the Transactions) to compete in any line of business or with any Person or geographic area$100 million;
(viii) each partnershipany Contract involving the settlement of any claims, joint ventureactions, limited liability company suits or strategic alliance agreement proceedings or threatened claims, actions, suits or proceedings (or series of related claims, actions, suits or proceedings) pursuant to which any Pluto Entity (with respect to the Company Spinco Business) or a Subsidiary Spinco Entity (A) is required to pay after the date hereof consideration in excess of $50 million or (B) is subject to material monitoring or reporting obligations to any other Person outside the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)ordinary course of business;
(ix) each contract between any Contract with any Governmental Authority that is material to the Spinco Business (taken as a whole), excluding any sales, supply, manufacturing or among services agreements entered into in the Company or ordinary course of business and tolling agreements entered into in connection with investigations by any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;Governmental Authority; and
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract Contract not otherwise described in any other subsection of this Section 4.16(a6.11(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each be filed by Spinco as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the SEC) if Spinco were subject to the reporting requirements of the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary Act as of the Companydate hereof.
(b) CollectivelyPluto has made available to Utah true, complete and correct copies of each Spinco Material Contract described in Section 6.11(a)(i) through Section 6.11(a)(x) in effect on the date hereof. Each Spinco Material Contract (except those which may be canceled, rescinded, terminated or not renewed after the date hereof in accordance with their terms) is valid and binding on the applicable Pluto Entity or Spinco Entity and, to the knowledge of Pluto, the contracts set forth counterparty thereto, and is in Schedule 4.16(a) of full force and effect, subject to the Company Disclosure Letter are herein referred Remedies Exception. No Pluto Entity or Spinco Entity is in breach of, or default under, any Spinco Material Contract to as the “Company Contracts.” Except which it is a party, except for such breaches or defaults as would not reasonably be expected to have, individually or in the aggregate, a Company Spinco Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to . To the knowledge of Pluto, as of the Companydate hereof, each no other party thereto, and to any Spinco Material Contract is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as breach of or default under the terms of any Spinco Material Contract where such breach or default has had or would not reasonably be expected to have, individually or in the aggregate, a Company Spinco Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 3 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.), Business Combination Agreement
Material Contracts. (a) Schedule 4.16(aExcept as set forth in Section 5.14(a) of the Company SpinCo Disclosure Letter sets forth a true Schedule and complete listexcept for Contracts that do not constitute SpinCo Assets, as of the date hereof, neither the Company nor any of this Agreementits Subsidiaries (other than SpinCo) (solely with respect to the SpinCo Business), of:or SpinCo, is party to or otherwise bound by or subject to Contracts of the following types (together with any SpinCo Affiliate Contracts, the “SpinCo Material Contracts”):
(i) each contract any Contract that relates to the purchase or sale of goods or services pursuant to which the SpinCo Business has received more than $50,000 or paid more than $50,000 in the past twelve (12) months;
(ii) any Contract that limits or purports to limit in any material respect the ability of the SpinCo Business to compete with any Person or in any line of business or in any geographic region in the world;
(iii) any Contract that grants exclusive rights to a customer or a supplier or (to the extent material to the SpinCo Business) any other than this Agreementcommercial counterparty that will relate to or affect the SpinCo Business after the Closing;
(iv) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture any Contract that requires any future capital expenditures by the SpinCo Business in excess of $50,000 that will not be paid prior to the Closing;
(v) any Contract that requires any milestone, earn out or similar payments to be made by the SpinCo Business in excess of $50,000 that will not be paid prior to the Closing;
(vi) any Contract that relates to the creation, incurrence, assumption or guarantee of any indebtedness for borrowed money or any bonds, debentures, notes or similar instruments, in each case, in excess of $50,000;
(vii) any Contract pursuant to which (A) any Person grants to SpinCo or, with respect to the SpinCo Business, to the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Companyother than SpinCo, any Subsidiary of license, right, permission, consent, non-assertion or release with respect to any Intellectual Property that is material to the Company or any of their respective Affiliates to ownSpinCo Business, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice (1) non-exclusive click-wrap, shrink-wrap or off-the-shelf Software licenses that are commercially available on standard and reasonable terms to the public generally with license, maintenance, support and other fees of or consent to assignment less than $10,000 in any twelve (12)-month period, (2) non-disclosure agreements entered into in the ordinary course of business consistent with past practice and (3) non-exclusive licenses granted by any counterparty thereto);
suppliers or service providers to SpinCo in the ordinary course of business consistent with past practice solely for the receipt of services from such supplier or service provider, and solely where such licenses are ancillary to the primary purpose of such Contract, or (iiiB) each contract relating SpinCo or, with respect to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the SpinCo Business, the Company or any of its Subsidiaries (whether incurredother than SpinCo, assumedgrants any license, guaranteed right, permission, consent, non-assertion or secured by release with respect to any asset) in excess of $15,000,000Intellectual Property that is material to the SpinCo Business, other than (1) non-exclusive licenses granted to customers SpinCo in the ordinary course of business consistent with past practice, (2) non-exclusive licenses granted to any suppliers or service providers by SpinCo in the ordinary course of business consistent with past practice solely for the benefit of SpinCo and (3) non-disclosure agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)business consistent with past practice;
(vviii) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract Contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability SpinCo or, with respect to the Company or any of its Subsidiaries;
(vii) each contract containing any non-competeSpinCo Business, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnershipother than SpinCo, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than with any such agreement solely between or among the Company and its wholly owned Subsidiaries)Governmental Authority;
(ix) each contract between any lease, sublease, occupancy agreement or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handlicense for real property;
(x) each contract any Contract that obligates the Company is a settlement, conciliation or similar agreement with any of its Subsidiaries to indemnify Governmental Authority or that otherwise involves any past settled or present directorsthreatened claim, officersaction, suit or employees of the Company or any of its Subsidiaries proceeding pursuant to which the Company SpinCo Business has (or will have after the Closing) any of its Subsidiaries is the indemnitormonetary or other material outstanding obligation;
(xi) each vendorany Contract that contains “most favored nation” pricing provisions for the benefit of the relevant counterparty that will relate to or affect the SpinCo Business after the Closing;
(xii) any joint venture, supplier or consulting strategic alliance, joint development, partnership or similar arrangement;
(xiii) any Contract relating to the acquisition or disposal or divestiture of, or investment in, any joint venture, partnership or similar arrangement or any material assets or businesses;
(xiv) any prime contract, subcontract, purchase order, task order, delivery order, teaming agreement, joint venture agreement, strategic alliance agreement, basic ordering agreement, pricing agreement, letter contract or other similar arrangement of any kind where the counterparty or the ultimate customer is, or the work performed under such contract was funded by, a Governmental Authority;
(xv) any Contract related to the Company’s “Jet Card Program”, including any Contracts with participants of the “Jet Card Program”; and
(xvi) any Contract not otherwise described in any other subsection of this Section 4.16(a5.14(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each be filed by SpinCo as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the SEC) if SpinCo were subject to the reporting requirements of the Exchange Act) not otherwise described in this Section 4.16(a) with respect Act as of the date hereof. The Company has made available to Parent copies of each SpinCo Material Contract that are correct and complete. Each SpinCo Material Contract is valid and binding on the Company or any Subsidiary of the Company.
(b) Collectivelyits applicable Subsidiary, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto including SpinCo and, to the knowledge Knowledge of the CompanyCompany or SpinCo, each other party the counterparty thereto, and is in full force and effecteffect and enforceable in accordance with its terms, subject, as subject to enforceability, to Creditors’ Rightsthe Remedies Exception. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any its applicable Subsidiary, including SpinCo is, and to the Knowledge of its Subsidiaries is the Company or SpinCo, no counterparty thereto is, in breach of, or default under under, any Company Contract nor, to the knowledge of the Company, is any other party to any such Company SpinCo Material Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentany material respect.
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (Flyexclusive Inc.), Agreement and Plan of Merger and Reorganization (Jet.AI Inc.), Agreement and Plan of Merger and Reorganization (Jet.AI Inc.)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement and the Company Disclosure Letter sets forth a true and complete listother Transaction Agreements, as of the date hereof, none of this Agreement, ofCompany T or its Subsidiaries is a party to nor are any of Company T’s or its Subsidiaries’ properties or assets bound by:
(i) each contract (other than this Agreement) any Contract that involves a pending would be required to be filed or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires furnished by Company T pursuant to Item 19 and paragraph 4 of the Company or any Instructions to Exhibits of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000Form 20-F under the Exchange Act;
(ii) each contract that grants any Contract granting a right of first refusal or right of refusal, first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)first negotiation;
(iii) each contract any Contract relating to outstanding Indebtedness (the formation, creation, operation, management or commitments or guarantees in respect thereof) control of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement similar arrangement;
(iv) any Contract for the acquisition, sale or lease (including leases in connection with financing transactions) of material properties or assets of Company T (by merger, purchase or sale of assets or stock or otherwise);
(v) any Contract with any Governmental Entity;
(vi) any Contract involving the payment or receipt of amounts by Company T or its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than US$4,000,000;
(vii) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of Company T or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(viii) any Contract that contains a put, call or similar right pursuant to which the Company T or a Subsidiary any of the Company is a party (other than its Subsidiaries could be required to purchase or sell, as applicable, any such agreement solely between or among the Company and its wholly owned Subsidiaries)equity interests of any Person;
(ix) each contract between or among the Company any Contract that contains restrictions with respect to (A) payment of dividends or any Subsidiary distribution with respect to equity interests of the Company, on the one hand, and the Company Manager T or any officerof its Subsidiaries, director or Affiliate (other than a wholly owned Subsidiary B) pledging of the Company) share capital of the Company T or any of its Subsidiaries or (C) issuance of guaranty by Company T or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;its Subsidiaries; or
(x) each contract that obligates the any material Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
T IP Agreements other than agreements for Off-the-Shelf Software and UGC Agreements (xi) each vendor, supplier or consulting or similar contract not otherwise all such Contracts described in this Section 4.16(aclauses (i) that through (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time x), and (B) under which it is reasonably expected the any Company or any of its Subsidiaries will be required to pay feesT VIE Contracts, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectivelycollectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company T Material Contracts”).” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Tudou Holdings LTD), Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) Schedule 4.16(a) Section 3.16 of the Company Pivotal Disclosure Letter sets forth a true lists (1) the EMC-Pivotal Customer Contracts and complete list, as (2) each Contract of the date following types, other than a Pivotal Plan or any Contract solely among Pivotal or any of this Agreementits Subsidiaries, ofon the one hand, and VMware or any of its Subsidiaries, on the other hand, to which Pivotal or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) each contract any Contract that would be required to be filed by Pivotal as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Pivotal on a Current Report on Form 8-K;
(other than this Agreementii) any Contract that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires limits the Company ability of Pivotal or any of its Subsidiaries to dispose of or acquire assets or properties with in a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Companymaterial manner, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or in any geographic area, which business or geographic area is material to Pivotal and its Subsidiaries, taken as a whole, or that materially restricts the right of Pivotal and its Subsidiaries in a material manner to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights;
(iii) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability or other similar agreement or arrangement;
(iv) any Contract relating to Indebtedness and having an outstanding principal amount in excess of $1,000,000;
(v) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $1,000,000 or more (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice);
(vi) any Contract that by its terms calls for aggregate payment (including royalties) by Pivotal and its Subsidiaries under such Contract of more than $5,000,000 over the remaining term of such Contract;
(vii) any Contract pursuant to which Pivotal or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $5,000,000, other than indemnification arrangements arising pursuant to Contracts with customers relating to Pivotal Products in the ordinary course of business; Table of Contents
(viii) each partnershipany Contract that is a license agreement, joint venturecovenant not to ▇▇▇ agreement or co-existence agreement or similar agreement that is material to the business of Pivotal and its Subsidiaries, limited liability company or strategic alliance agreement taken as a whole, to which the Company Pivotal or a Subsidiary any of the Company its Subsidiaries is a party and (a) licenses in Intellectual Property owned by a third party, or (b) licenses out Intellectual Property owned by Pivotal or its Subsidiaries or agrees not to assert or enforce Intellectual Property owned by Pivotal or such Subsidiary, other than than, in the case of (a), (1) non-exclusive licenses for software or a cloud service that is generally commercially available and not embedded in, integrated or bundled with a Pivotal Product, and (2) Open Source Licenses, and in the case of (b), (3) non-exclusive licenses granted to any Person in the ordinary course of business where the license is granted for the purpose of the Person’s provision of services to Pivotal or any of its Subsidiaries, including such agreement solely between Contracts with individual employees or among independent contractors, and in the Company case of (a) and (b), (4) non-exclusive licenses relating to Pivotal Products with customers and potential customers of Pivotal or any of its wholly owned Subsidiaries)Subsidiaries entered into in the ordinary course of business, (5) stand-alone confidentiality agreements entered into in the ordinary course of business and (6) Contracts with VMware, EMC Corp, Dell or any of their Affiliates;
(ix) each contract between or among the Company any Contract that obligates Pivotal or any Subsidiary of its Subsidiaries to make any capital commitment, loan or expenditure in an amount in excess of $5,000,000;
(x) any Contract not entered into in the Companyordinary course of business between Pivotal or any of its Subsidiaries, on the one hand, and the Company Manager or any officer, director or Affiliate (thereof other than a wholly owned any Subsidiary of the Company) of the Company or any of its Subsidiaries Pivotal, Dell, EMC Corp, VMware or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handAffiliates;
(xxi) each contract that obligates the Company or any of its Subsidiaries to indemnify Current Government Contract;
(xii) any past or present directors, officers, or employees of the Company or Material Customer Contract with a Top Customer; or
(xiii) any of its Subsidiaries pursuant Contract to which the Company Pivotal or any of its Subsidiaries is the indemnitor;
a party and pursuant to which Intellectual Property owned by a third party is exclusively licensed (xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(aexclusive rights are granted) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company Pivotal or any of its Subsidiaries will be required Subsidiaries, excluding Intellectual Property that is not material to pay feesthe business of Pivotal and its Subsidiaries, expenses or other costs taken as a whole. Each contract of the type described in excess of $50,000 following the Effective Time; andsubsection (a)(1) and subsection (a)(2) clauses (i) through (xiii) is referred to herein as a “Material Contract.”
(xiii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, each Company Contract is legal, valid, valid and binding on Pivotal and enforceable in accordance with its terms on the Company and each any of its Subsidiaries that to the extent such Subsidiary is a party thereto andthereto, as applicable, and to the knowledge of the CompanyPivotal, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable and in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, would not have a Company Material Adverse Effect, neither the Company nor any ; (ii) Pivotal and each of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, and, to the knowledge of Pivotal, each other party thereto, has performed all obligations required to be performed by it under each Material Contract, other than any obligations for which the Companyfailure to perform would not be material to Pivotal and its Subsidiaries, taken as a whole; and (iii) there is no default under any Material Contract by Pivotal or any of its Subsidiaries or, to the knowledge of Pivotal, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the part of Pivotal or any of its Subsidiaries or, to the knowledge of Pivotal, any other party thereto under any such Company Contract Material Contract, nor has Pivotal or any of its Subsidiaries received any notice of any such default, event or condition, except where any such default, event or condition, individually or in breach or default thereunderthe aggregate, would not have a Material Adverse Effect. Complete Pivotal has Made Available to VMware true and accurate complete copies of each Company Contract in effect as of the date hereof (all Material Contracts, including all amendments and modifications) have been furnished to or otherwise made available to Parentthereto.
Appears in 3 contracts
Sources: Merger Agreement (Dell Technologies Inc), Merger Agreement (Dell Technologies Inc), Merger Agreement (Vmware, Inc.)
Material Contracts. (a) Schedule 4.16(aExcept for this Agreement, the Company Benefit Plans, the Company Real Property Leases and as set forth on Section 3.18(a) of the Company Disclosure Letter sets forth Schedule, neither the Company nor any of its Subsidiaries is a true and complete listparty to or bound by, as of the date of this Agreement, of:
(i) each contract any joint venture, co-development, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint venture or partnership that is material to the business of the Company and its Subsidiaries, taken as a whole;
(other than this Agreementii) that involves a pending any Contract imposing any material restriction on the right or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires ability of the Company or any of its Subsidiaries to dispose of compete with any other Person or acquire assets or properties with operate in a fair market value in excess of $25,000,000;
(ii) each contract geographical area that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company would be binding on Parent or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)its Subsidiaries after the Closing;
(iii) any Contract that is an indenture, credit or loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing Indebtedness for borrowed money, deferred payment or the imposition of any Lien other than Permitted Liens (in each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,0005,000,000 (each, other than agreements solely among the a “Company and its wholly owned SubsidiariesIndebtedness Contract”);
(iv) other any Contract pursuant to which the Company or any of its Subsidiaries (A) is granted rights in any third-party Intellectual Property (excluding any commercially available, unmodified off-the-shelf software licensed for annual aggregate license fees of less than contracts entered into $250,000) or (B) has granted to any Person any licenses or rights under any Company Intellectual Property owned by the Company or any of its Subsidiaries (excluding nonexclusive license grants in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Companybusiness consistent with past practice);
(v) each contract any settlement, conciliation or similar agreement (x) with any Person that involves would reasonably be expected to be material to the Company and its Subsidiaries taken as a whole or constitutes an interest rate cap, interest rate collar, interest rate swap (y) which would require the Company or other contract or agreement relating any of its Subsidiaries to a forward swap or other hedging transaction pay consideration of any type, except for contracts entered into for bona fide hedging purposesmore than $500,000 after the date of this Agreement;
(vi) each employment contract any Contract that contains any standstill or similar agreement pursuant to which the Company or a Subsidiary any of its Subsidiaries has agreed not to acquire assets or securities of another Person that would be binding on Parent or any of its Subsidiaries after the Closing;
(vii) any Contract that (A) relates to the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person other than the Company or any of its Subsidiaries for aggregate consideration in excess of $3,000,000 or pursuant to which the Company or any of its Subsidiaries has continuing material “earn out” or other similar material contingent payment obligations outstanding; or (B) gives any Person the right to acquire any assets of the Company is or its Subsidiaries (or any interests therein) after the date hereof with a party total consideration of more than $3,000,000;
(viii) any Contract that provides for aggregate payments by or to the Company and/or its Subsidiaries in excess of $7,500,000 in any 12-month period, other than at-will arrangements any such Contracts that can may be cancelled, terminated at any time or withdrawn upon notice of ninety (90) days or less without material liability to or continuing obligation on the part of the Company or any of its Subsidiaries;
(viiix) each contract containing any non-compete, exclusivity Contract that obligates the Company or its Subsidiaries to conduct business on an exclusive basis with any Person or that contains “most favored nation” or similar type covenants, in each case other than any such Contracts that may be cancelled, terminated or withdrawn upon notice of provision that materially restricts ninety (90) days or less without material liability or continuing obligation on the ability part of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract any Contract containing continuing indemnification rights or obligations (other than those indemnification obligations that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on reasonably be expected to be material to the Company and each of its Subsidiaries taken as a whole); or
(xi) any Contract with a Governmental Entity that is material to the Company and its Subsidiaries taken as a whole. All of the Contracts of the types referred to in this Section 3.18(a) are referred to herein as “Company Material Contracts.”
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to be material to the Company and its Subsidiaries taken as a whole. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to be material to the Company and its Subsidiaries taken as a whole. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither effect and enforceable against the Company nor any or the Subsidiary of the Company which is party thereto in accordance with its Subsidiaries terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally, and (ii) is in breach or default under any Company Contract nor, subject to the knowledge rules governing the availability of the Companyspecific performance, is any injunctive relief or other party to any such Company Contract equitable remedies and general principles of equity, regardless of whether considered in breach a proceeding in equity or default thereunderat law. Complete and accurate copies of each Company Contract in effect as As of the date hereof (including of this Agreement, the Company has provided to Parent true and complete copies of all amendments and modifications) have been furnished to or otherwise made available to ParentCompany Material Contracts.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (NewPage Holdings Inc.), Merger Agreement (Verso Paper Corp.)
Material Contracts. (a) Schedule 4.16(aExcept for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter sets forth a true and complete list(such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, ofnone of the Company or any Company Subsidiary is a party to or bound by:
(i) each contract (other than this Agreement) any Contract that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires is required to be filed by the Company or any pursuant to Item 15 of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000Form 10-K under the Exchange Act;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract Contract relating to outstanding any credit, loan or facility arrangement, guarantee or Indebtedness (whether or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether not incurred, assumed, guaranteed or secured by any assetasset of the Company or any Company Subsidiary) in excess of $15,000,000more than US$2,000,000 for each such Contract individually, other than agreements solely any Indebtedness between or among any of the Company and its wholly owned Subsidiariesany Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other than contracts entered into in the ordinary course securities of business, each contract under which the Company or any Company Subsidiary that has a Subsidiary fair market value or purchase price of the Company has, directly more than US$1,000,000 under which there are material rights or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)obligations outstanding;
(v) each contract any Contract that involves limits, or constitutes an interest rate cappurports to limit, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) Company Subsidiary to compete in any material line of business or with any Person person or entity or in any geographic areaarea or during any period of time;
(viiivi) each partnership, joint venture, limited liability company any Contract prohibiting the payment of dividends or strategic alliance agreement to which the Company or a Subsidiary distributions in respect of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) capital stock of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 wholly owned Company Subsidiaries, prohibits the pledging of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of its Subsidiaries any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its the Company Subsidiaries is the indemnitor;
(xi) each vendor, supplier licenses in Intellectual Property or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected licenses out Intellectual Property owned by the Company or any such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Timebusiness); and
(xiix) each “material contract” (as such term is defined any Contract providing for any change of control or similar payments to a third party in Item 601(b)(10) excess of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyUS$1,000,000.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Company Material Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company or a Company Subsidiary and each in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of its general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries that is a party thereto have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as no fact or event exists that could give rise to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any claim of its Subsidiaries is in breach or material default under any Material Contract; and (iv) the Company Contract norhas not received, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished of this Agreement, any notice in writing from any person that such person intends to or otherwise made available to Parentterminate any Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Material Contracts. (a) Schedule 4.16(a4.14 lists (without duplication) each of the Company Disclosure Letter sets forth following contracts and other agreements to which a true and complete list, Conveyed Entity or any Subsidiary thereof is a party or by or to which a Conveyed Entity or any Subsidiary thereof or any of their respective assets or properties is bound or subject as of the date of this Agreementhereof, of:except for (i) contracts and other agreements the only parties to which are the Conveyed Entities and their Subsidiaries and (ii) contracts and other agreements which are terminable on sixty (60) days prior notice without material penalty (such contracts and agreements being "Material Contracts"):
(i) each contract (agreements between a Conveyed Entity or Subsidiaries thereof and a Franchisee, or other than this Agreement) that involves a pending agreements relating to the franchise business operations providing for payments to or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires by the Company or any of its Conveyed Entities and their Subsidiaries reasonably expected to dispose of or acquire assets or properties with a fair market value in excess of exceed $25,000,0001,500,000 per agreement per calendar year;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Companyadvertising, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (market research and other than provisions requiring notice of or consent to assignment marketing agreements providing for payments by any counterparty thereto)Conveyed Entity or its Subsidiaries of more than $1,500,000 per agreement per calendar year;
(iii) each contract relating to outstanding Indebtedness (employment, severance, consulting or commitments other agreements with any current stockholder, director, officer or guarantees in respect thereof) employee which provide for the continuing obligation on the part of the Company or any of its Conveyed Entities and/or their Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) to pay compensation in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;100,000 per calendar year.
(iv) agreements outside the ordinary course of business relating to (x) the sale or lease (as lessor) by a Conveyed Entity or any Subsidiary thereof of any assets or properties in excess of $1,500,000 per agreement per calendar year, (y) the acquisition or lease (as lessee) by the Conveyed Entity or any Subsidiary thereof of any assets or properties in excess of $1,500,000 per agreement per calendar year or (z) any airport concession;
(v) agreements restricting the ability of the Conveyed Entities or the Subsidiaries thereof to incur Indebtedness;
(vi) agreements relating to any guarantee of Indebtedness by the Conveyed Entities or the Subsidiaries thereof (other than contracts indemnities made in the ordinary course of business which are not material to the Conveyed Entities and their Subsidiaries taken as a whole);
(vii) agreements relating to the making of any loan or advance by a Conveyed Entity or any Subsidiary thereof, other than (x) intercompany loans among the Conveyed Entities or Subsidiaries thereof and (y) those made in the ordinary course of business consistent with past practice;
(viii) agreements relating to Indebtedness, factoring arrangements, sale and leaseback transactions and other similar financing transactions providing for payments of more than $1,500,000 per agreement;
(ix) agreements providing for the indemnification by a Conveyed Entity or Subsidiaries thereof of any person, except those entered into in the ordinary course of business, each contract under business and those which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without are not material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Conveyed Entities and their Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or taken as a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handwhole;
(x) each contract that obligates agreements with any Governmental Authority except those entered into in the Company or any ordinary course of its business and those which are not material to the Conveyed Entities and their Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitortaken as a whole;
(xi) each vendormaterial joint venture, supplier or consulting partnership or similar contract not otherwise described documents or agreements;
(xii) agreements that limit or purport to limit the ability of a Conveyed Entity or Subsidiary thereof to compete with any Person in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective TimeCar Rental Business; and
(xiixiii) each “other agreements, contracts or commitments not made in the ordinary course of business which are material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyConveyed Entities and their Subsidiaries taken as a whole.
(b) CollectivelyTo the Knowledge of the Shareholders and the Conveyed Entities, the contracts except as set forth in on Schedule 4.16(a) 4.14, as of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectdate hereof, each Company Material Contract is legal, valid, valid and binding on and enforceable in accordance with its terms against the respective Conveyed Entities or Subsidiaries thereof that are parties thereto. Except as set forth on Schedule 4.14, the Company and each of its Subsidiaries that is a party thereto and, to the knowledge consummation of the Companytransactions contemplated by this Agreement, each other will not result in a material breach of any Material Contract. No Conveyed Entity or Subsidiary thereof is (or with the giving of notice or lapse of time would be) in material breach of, or material default under, any Material Contract. Neither the Shareholders nor any of the Conveyed Entities or their Subsidiaries has received any written notice from June 30, 1996 through the date hereof that any Material Contract is not enforceable against any party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in that any Material Contract has been terminated before the aggregate, a Company Material Adverse Effect, neither the Company nor any expiration of its Subsidiaries is in breach term or default under that any Company party to a Material Contract nor, intends to terminate such Material Contract prior to the knowledge of the Companytermination date specified therein, is or that any other party to is in material breach of, or material default under, any such Company Contract in breach or default thereunderMaterial Contract. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) There have been furnished to delivered or otherwise made available to ParentRepublic and the Republic Subsidiaries true and complete copies of all Material Contracts.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Republic Industries Inc), Agreement and Plan of Reorganization (Guy Salmon Usa LTD), Agreement and Plan of Reorganization (Republic Industries Inc)
Material Contracts. (a) Schedule 4.16(a) Except as set forth in Section 3.20 of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date of this Agreementhereof, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires neither the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or nor any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier a party to or consulting or similar contract not otherwise described in this Section 4.16(a) bound by any Contract that (Ai) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Exchange ActSEC), (ii) not would, after giving effect to the Merger, materially limit or restrict the Surviving Corporation or any of its Subsidiaries or any successor thereto, from engaging or competing in any line of business or in any geographic area that it currently engages in or that contains exclusivity or non-solicitation provisions with respect to customers, (iii) limits or otherwise restricts the ability of the Company or any of its Subsidiaries to pay dividends or make distributions to its shareholders or (iv) provides for the operation or management of any material operating assets of the Company or its Subsidiaries by any person other than the Company or its Subsidiaries. Each Contract of the type described in this Section 4.16(a) with respect to the Company 3.20, whether or any Subsidiary of the Company.
(b) Collectively, the contracts not set forth in Schedule 4.16(a) on Section 3.20 of the Company Disclosure Letter are herein Schedule is referred to herein as the a “Company ContractsMaterial Contract.” Except as would not reasonably be expected to have, individually or in the aggregate, a Each Company Material Adverse Effect, each Company Contract is legal, valid, a valid and binding and enforceable in accordance with its terms on obligation of the Company and each of or its Subsidiaries that is a Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto and, to the knowledge of the Company, each other party thereto, in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) and, is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither and each of the Company nor any and each of its Subsidiaries which is a party thereto has performed in breach or default all material respects all obligations required to be performed by it to the date hereof under any each Company Material Contract norand, to the knowledge of the Company, is any each other party to any each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Contract Material Contract, except, in breach each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries has knowledge of, or has received written notice of, any violation of or default thereunderunder (or any condition which with the passage of time or the giving of written notice would cause such a violation of or default under) any Company Material Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, after giving effect to the Merger, a Parent Material Adverse Effect. Complete and accurate copies “Contract” or “contract” means any written agreement, undertaking, contract, commitment, lease, license, permit, franchise, concession, deed of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to trust, contract, note, bond, mortgage, indenture, arrangement or otherwise made available to Parentother instrument or obligation.
Appears in 3 contracts
Sources: Merger Agreement (DPL Inc), Merger Agreement (DPL Inc), Merger Agreement (Aes Corp)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement and except for Contracts filed as exhibits to the Company Disclosure Letter sets forth a true and complete list, as of SEC Reports filed prior to the date of this Agreement, ofas of the date hereof, none of the Company or its Subsidiaries is a party to or bound by:
(i) each contract any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to material Indebtedness (other than this Agreementany Indebtedness solely between the Company and any of its Subsidiaries);
(iii) that involves any material joint venture contracts, strategic cooperation, partnership arrangements or other agreements outside the ordinary course of business involving a pending sharing of profits, losses, costs or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires liabilities by the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiariesthird party;
(iv) other than contracts entered into any Contract that limits in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts respect the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” employees to compete in any material line of business or “immediate family” members with any Person or entity or in any geographic area or during any period of time in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(as such terms are defined in Rule 12b-2 and Rule 16a-1 v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of the Exchange Actassets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company Manageror any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(xvii) each contract that obligates any Contract between the Company or any of its Subsidiaries to indemnify and any past director or present directors, officers, or employees executive officer of the Company or any Person beneficially owning five percent or more of its Subsidiaries the outstanding Shares required to be disclosed pursuant to which Item 7B or Item 19 of Form 20-F under the Company or any of its Subsidiaries is the indemnitorExchange Act;
(xiviii) each vendor, supplier any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or consulting or similar contract not otherwise described in this Section 4.16(a) that the consummation of the Merger where (A) cannot be voluntarily terminated pursuant such Contract requires any payment, taken as whole, that is material to the Company and its terms within sixty (60) days after the Effective Time and Subsidiaries or (B) under which it is reasonably expected the value of the outstanding receivables due to the Company or any of and its Subsidiaries will be required under such Contract, taken as whole, that is material to pay fees, expenses or other costs in excess of $50,000 following the Effective TimeCompany and its Subsidiaries; and
(xiiix) each “any other contracts and agreements, whether or not made in the ordinary course of business, which are material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company and its Subsidiaries, taken as a whole, or any Subsidiary the conduct of their respective businesses, or the Companyabsence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract”.
(b) Collectively, the contracts set forth in Schedule 4.16(a) As of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except date of this Agreement, except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid, valid and binding and enforceable in accordance with its terms on obligation of the Company and each of or its Subsidiaries that is a party thereto and, to the knowledge of Company’s Knowledge, the Company, each other party parties thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under under, any Company Material Contract norand no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge Company’s Knowledge, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, is the Company and its Subsidiaries have not received any other party to written claim or notice of default, termination or cancellation under any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Contract.
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (other than any Company Benefit Plan);
(ii) any Contract with the 50 largest customers of the Company and its Subsidiaries, taken as a whole, based on budgeted receipts for the fiscal year ended December 31, 2018 (the “Major Customers”) that expressly imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to compete with any other Person or solicit any client or customer and, in each case, that following the Closing will materially restrict the ability of Parent or its Subsidiaries (other than the Surviving Company and its Subsidiaries) to so compete or solicit;
(iii) any Contract with a Major Customer that expressly obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants;
(iv) any Company employment agreement with any current executive officer or any current member of the Company Board;
(v) any Contract entered into on or after January 1, 2015 that is a settlement agreement or includes a settlement agreement entered into in connection with a Proceeding and that materially restricts the operation of the business of the Company or any of its Subsidiaries;
(vi) any Contract relating to Indebtedness (other than intercompany Indebtedness owed by the Company or any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the Company) of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1,000,000;
(vii) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(viii) any Contract with the twenty largest vendors of the Company and its Subsidiaries, taken as a whole, with respect to the fiscal year ended December 31, 2017 and any Contract with the twenty largest customers of the Company and its Subsidiaries, taken as a whole, based on budgeted receipts for the fiscal year ended December 31, 2018 (the “Top Customers”), in each case based on amounts paid to such vendor or received from such customer during such period;
(ix) any Contract entered into on or after January 1, 2015 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, and with any outstanding obligations as of the date of this Agreement, in each case with a value in excess of $1,000,000;
(x) any material joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries; and
(xi) any Contract with an affiliate or other Person that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act. All contracts of the types referred to in clauses (i) not otherwise described in this Section 4.16(athrough (xi) with respect above are referred to herein as “Company Material Contracts.”
(b) Neither the Company or nor any Subsidiary of the Company.
(b) Collectively, Company is in material breach of or default in any respect under the contracts set forth in Schedule 4.16(a) terms of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a any Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, as of the date hereof, no other party to any Company Material Contract is in material breach of or default in any respect under the terms of any Company Material Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, prior to the date hereof through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a material breach of or default or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any material benefit under the terms of any Company Material Contract. To the knowledge of the Company, each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and of each other party thereto, and (ii) is in full force and effect, subjectsubject to the Enforceability Exceptions, as to enforceabilityin each case, to Creditors’ Rights. Except except as would not reasonably be expected material to havethe Company and its Subsidiaries, individually or in taken as a whole. There are no disputes pending or, to the aggregateCompany’s knowledge, a threatened with respect to any Company Material Adverse EffectContract, and neither the Company nor any of its Subsidiaries is in breach or default under has received any Company Contract nor, to the knowledge written notice of the Company, is intention of any other party to a Company Material Contract to terminate for default, convenience or otherwise, any such Company Contract Material Contract, in breach or default thereunder. Complete each case, except as would not be material to the Company and accurate copies of each Company Contract in effect its Subsidiaries, taken as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parenta whole.
Appears in 3 contracts
Sources: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Material Contracts. (a) Schedule 4.16(a) Section 2.14 of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date of this Agreement, ofof the following Contracts (each a “Material Contract”) to which the Company and each Subsidiary is a party or by which it or any of their properties, rights or assets are bound:
(ia) each contract (other than this Agreement) any Contract that involves a pending provides for obligations, payments, Liabilities, consideration, performance of services or contemplated merger, business combination, acquisition, purchase, sale the delivery of goods to or divestiture that requires by the Company or the Subsidiaries of any of its Subsidiaries amount or value reasonably expected to dispose of or acquire assets or properties with a fair market value be in excess of $25,000,000250,000 annually;
(b) any Contract (i) not to compete in any business or geographic area, (ii) each contract that grants any Person the exclusive right to distribute products of the Company or the Subsidiaries, (iii) that grants “most favored nation” or similar preferred pricing to any Person, (iv) that grants rights of first refusal or right refusal, rights of first offer offer, rights of first negotiation or similar rights or that materially limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates the Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses, securities or assets (other than provisions requiring notice of or consent v) that grants any Person a right to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of require the Company or the Subsidiaries to purchase all or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary portion of the Company);
(v) each contract that involves ’s or constitutes an interest rate capthe Subsidiaries’ requirements from any third party, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its the Subsidiaries to indemnify provide maintenance and/or support with respect to any past or present directors, officers, or employees discontinued products of the Company or the Subsidiaries or any prior version of its any products of the Company or the Subsidiaries;
(c) any employment agreement, severance agreement, bonus agreement, indemnification agreement, consulting agreement, non-compete agreement, change-in-control or golden parachute agreement or similar agreement with or for the benefit of any employee, director or officer of the Company or the Subsidiaries pursuant whose annual total compensation exceeds $150,000;
(d) any collective bargaining agreement with any labor union or other collective bargaining representative;
(e) any Contract related to the assignment, license or other disposition or encumbrance of Intellectual Property Rights owned or used by the Company (other than contracts or agreements for commercially available “off the shelf” software for which the Company pays fees less than $50,000 per year, or any of its Subsidiaries is the indemnitorCompany’s standard customer contracts);
(xif) each vendorany Contract in which the ultimate contracting party is a Governmental Authority;
(g) any Real Property Leases;
(h) any Contract relating to Company Indebtedness or loans made by the Company, supplier including all notes, mortgages, indentures and other obligations, guarantees of performance, agreements and instruments for or consulting relating to any lending or borrowing (other than advances to employees for expenses in the Ordinary Course of Business or transactions with customers on credit in the Ordinary Course of Business);
(i) any Contract that is a letter of credit, bond or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant arrangement running to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected account of, or for the benefit of, the Company or any of its the Subsidiaries will be required to pay fees, expenses or other costs in an amount in excess of $50,000 following the Effective Time; and250,000;
(xiij) each “material contract” any Contract granting any Person a Lien on all or any part of the assets of the Company, other than Liens which will be released at or prior to the Closing and Permitted Liens;
(as k) any Contract with the Top Customers or Top Suppliers;
(l) the Insurance Policies listed on Section 2.16 of the Disclosure Schedule;
(m) any Contract governing any business acquisition or disposition, merger or similar transaction, by the Company, regardless of whether such term is defined in Item 601(b)(10transaction has yet been consummated, either (i) within the last five (5) years or (ii) pursuant to which any indemnification, earn out or other contingent or deferred payments or similar rights or obligations remain outstanding;
(n) any Contract that provides for the payment of Regulation S-K under cash or other compensation or benefits upon the Exchange ActMerger and the consummation of the transactions contemplated hereby;
(o) not otherwise described in this Section 4.16(a) with respect any Contract that relates to voting, transfer or other arrangements related to any equity interests of the Company or the Subsidiaries or warrants, options or other rights to acquire any Subsidiary equity interests of the Company or the Subsidiaries (other than this Agreement, the Merger and the transactions contemplated hereby); or
(p) any Contract that is otherwise material to the operations and business prospects of the Company and the Subsidiaries. All of the Material Contracts are in full force and effect and constitute the valid, legal and binding obligation of the Company or the Subsidiaries, as applicable, and to the Knowledge of the Company.
(b) Collectively, constitute the contracts set forth in Schedule 4.16(a) valid, legal and binding obligation of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveother parties thereof, individually or in the aggregate, a Company Material Adverse Effect, enforceable against each Company Contract is legal, valid, binding and enforceable such Person in accordance with its terms on terms, subject to (i) the effect of bankruptcy, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditor’s rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law). There are no material breaches or defaults by the Company and each or the Subsidiaries under any of its Subsidiaries that is a party thereto andthe Material Contracts or, to the knowledge Knowledge of the Company, each events which with notice or the passage of time would constitute a material breach or default by the Company or the Subsidiaries, and neither the Company nor the Subsidiaries has received written notice of any such material breach or default from any other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rightsunder any of the Material Contracts. Except as would not reasonably be expected to have, individually or in To the aggregate, a Company Material Adverse EffectKnowledge of the Company, neither the Company nor any of its Subsidiaries is in breach or default under have received notice from any Company Contract nor, to the knowledge of the Company, is any other third party to any Material Contract requesting or threatening to amend, not renew or terminate such Material Contract. The Company is not a party to any Contract in breach or default thereunderwith a Governmental Authority. Complete The Company has made available to Buyer true and accurate complete copies of each Company Contract in effect as of all the date hereof (Material Contracts, including all amendments and modifications) have been furnished to or otherwise made available to Parentthereto.
Appears in 3 contracts
Sources: Merger Agreement (Majesco), Merger Agreement (Majesco), Merger Agreement (InsPro Technologies Corp)
Material Contracts. (a) Except as disclosed in Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list3.11, as of the date hereof, neither ASFC nor any of this Agreement, ofits Subsidiaries is a party to or bound by:
(i) each contract any lease of real property where any of ASFC or its Subsidiaries are tenants (other than this AgreementA) that involves a pending providing for annual base rentals of $1,000,000 or contemplated mergermore, business combination(B) expiring after December 31, acquisition, purchase, sale 2002 or divestiture that requires the Company (C) where ASFC or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value Affiliates holds an equity interest in excess of $25,000,000such real property;
(ii) each contract any agreement for the purchase of materials, supplies, goods, services, equipment or other assets, including any license for Software, that grants any right of first refusal provides for either (A) annual payments by ASFC or right of first offer or that limits the ability of the Company, any Subsidiary of the Company ASFC of $1,000,000 or more or (B) aggregate required payments by ASFC or any Subsidiary of their respective Affiliates to own, operate, sell, transfer, pledge ASFC of $5,000,000 or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)more;
(iii) each contract relating to outstanding Indebtedness (any limited partnership, joint venture or commitments other unincorporated business organization or guarantees similar arrangement or agreement in respect thereof) of the Company which ASFC or any Subsidiary of its Subsidiaries (whether incurred, assumed, guaranteed ASFC serves as a general partner or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiariesotherwise has unlimited liability;
(iv) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(v) any agreement relating to indebtedness for borrowed money or any guarantee or similar agreement or arrangement relating thereto, other than contracts (A) any guarantees issued in the ordinary course of the surety business of ASFC and its Subsidiaries consistent with past practice and (B) any such agreement with, or relating to, an aggregate outstanding principal amount or guaranteed obligation not exceeding $10,000,000;
(vi) any license, franchise or similar agreement material to ASFC and its Subsidiaries, taken as a whole;
(vii) any agency, dealer, sales representative, marketing or other similar agreement material to ASFC and its Subsidiaries, taken as a whole;
(viii) any agreement that restricts or prohibits ASFC or any Subsidiary of ASFC from competing with any Person in any line of business or from competing in, engaging in or entering into any line of business in any area and which would so restrict or prohibit ASFC or any Subsidiary of ASFC after the Closing Date;
(ix) any reinsurance treaty or any facultative reinsurance contract (in each case applicable to insurance in force), other than any such treaty or contract entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)business consistent with past practice;
(vx) each contract that involves any material agreement containing "change in control" or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement similar provisions relating to a forward swap or other hedging transaction change in control of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company ASFC or any of its Subsidiaries;
(viixi) each contract containing any non-compete"stop loss" agreements, exclusivity other than those entered into in the ordinary course of business consistent with past practice;
(xii) any agreements (other than insurance policies or other similar type agreements issued by any Subsidiary of provision that materially restricts ASFC in the ability ordinary course of the Company its business) material to ASFC and its Subsidiaries taken as a whole pursuant to which ASFC or any Subsidiary of ASFC is obligated to indemnify any other Person; or
(xiii) any agreement with ASFC or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyAffiliates.
(b) Collectively, the contracts set forth in Schedule 4.16(a) ASFC has heretofore furnished or made available to Buyer complete and correct copies of the Company Disclosure Letter are herein referred contracts, agreements and instruments listed on Schedule 3.11, each as amended or modified to as the “Company Contracts.” date hereof, including any waivers with respect thereto (the "Significant Agreements"). Except as would specifically disclosed on Schedule 3.11, and except to the extent not reasonably be expected material to have, individually or ASFC and its Subsidiaries taken as a whole: (i) each of the Significant Agreements is in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding full force and effect and enforceable in accordance with its terms on terms, subject to (A) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and the Company rights of creditors of insurance companies generally and each (B) general principles of its Subsidiaries that is equity (regardless of whether considered in a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually proceeding at law or in the aggregate, a Company Material Adverse Effect, equity); (ii) neither the Company ASFC nor any of its Subsidiaries has received any notice (written or oral) of cancellation or termination of, or any expression or indication of an intention or desire to cancel or terminate, any of the Significant Agreements; (iii) no Significant Agreement is in the subject of, or, to the Knowledge of ASFC, has been threatened to be made the subject of, any arbitration, suit or other legal proceeding; and (iv) there exists no material event of default or occurrence, condition or act on the part of ASFC or any Subsidiary of ASFC which constitutes or would constitute (with notice or lapse of time or both) a material breach of or material default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentSignificant Agreements.
Appears in 3 contracts
Sources: Merger Agreement (American States Financial Corp), Merger Agreement (Safeco Corp), Merger Agreement (Lincoln National Corp)
Material Contracts. (a) Schedule 4.16(aThe Company and the Company Subsidiaries are not a party to or bound by any of the following Contracts except as set forth in Section 2(s) of the Company Disclosure Letter sets forth a true and complete list, Schedule or described in or filed as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires an exhibit to the Company SEC Documents (each, including any such Contracts listed in the Company SEC Documents, a “Material Contract,” and collectively, the “Material Contracts”):
i. any mortgages, indentures, guarantees, loans or any credit agreements, security agreements or other Contracts relating to the borrowing of its Subsidiaries money or extension of credit to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of by the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company accounts receivables and its wholly owned Subsidiaries;
(iv) other than contracts entered into payables in the ordinary course of businessbusiness and travel and similar advances to employees in the ordinary course of business consistent with past practice;
ii. any joint venture, each contract under which partnership, limited liability company, strategic alliance or other similar Contract relating to the formation, creation, operation, management or control of any partnership or joint venture;
iii. any Contracts relating to all mergers, consolidations, recapitalizations, reorganizations or similar transactions, or any acquisitions or dispositions material to the Company, currently contemplated by the Company or a Subsidiary that provide any ongoing material liabilities for payment of money, retention of liabilities, assets sold, indemnification or otherwise;
iv. any Contract providing for the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than payment by the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company Subsidiaries of an amount in excess of $150,000 or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any the Company Subsidiaries of its Subsidiariesan amount in excess of $150,000;
(vii) each contract containing any v. non-competecompetition, exclusivity non-solicitation or similar type of provision exclusive dealing Contracts or other Contracts that materially restricts restrict or limit or purport to restrict or limit in any material respect the ability of the Company or any of its Subsidiaries (including Parent upon consummation of Affiliates to solicit customers, potential employees or the Transactions) to compete manner or location in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) business of the Company or any of its Subsidiaries Affiliates may be conducted;
vi. any Contract the benefits of which will be increased by the consummation of the transactions contemplated hereby or the value of any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 the benefits of which will be calculated on the basis of any of the Exchange Act) or transactions contemplated by this Agreement; or
vii. any other Contract the termination of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officerswhich, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendordefault under which, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havewould, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect. Each of the Material Contracts to which the Company or any Company Subsidiary is a party is in full force and effect and is a valid and binding obligation of the Company or such Company Subsidiary, each and to the knowledge of the Company, the other party thereto, enforceable against the Company Contract is legalor such Company Subsidiary, validand to the knowledge of the Company, binding and enforceable against the other party thereto in accordance with its terms on terms. Neither the Company, nor to the knowledge of the Company, any other party to a Material Contract to which the Company and each of its Subsidiaries that or any Company Subsidiary is a party, is in breach or violation of, or in default under, any such Material Contract to which it is a party thereto andand no event has occurred that, individually or in the aggregate, with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company, the Company Subsidiaries or, to the knowledge of the Company, each by any other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 3 contracts
Sources: Preferred Stock Subscription Agreement, Preferred Stock Subscription Agreement (Lighting Science Group Corp), Preferred Stock Subscription Agreement (Lighting Science Group Corp)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement, the Confidentiality Agreement, and the Contracts filed as exhibits to publicly available Company Disclosure Letter sets forth a true and complete listReports, as of the date hereof, neither the Company nor any of this Agreement, ofits Subsidiaries is a party to or bound by any Contract:
(i) each contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) pursuant to which the Company or any Subsidiary of the Company has any material continuing “earn-out” or other than this Agreementcontingent payment obligations arising in connection with the acquisition or disposition by the Company of any business;
(iii) containing any standstill or similar provision remaining in effect pursuant to which the Company or any Subsidiary of the Company has agreed not to acquire securities or material assets of another Person;
(iv) that involves a pending or contemplated merger, (A) limits in any material respect either the type of business combination, acquisition, purchase, sale or divestiture that requires in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries to dispose after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or acquire “exclusivity” provisions), (B) would require the disposition of any material assets or properties with a fair market value in excess line of $25,000,000business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Significant Subsidiaries or (C) grants “most favored nation” status that, following the Merger, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iiv) each contract that grants (A) is an indenture, loan or credit Contract, loan note, mortgage Contract, letter of credit or other Contract representing, or any right of first refusal or right of first offer or that limits the ability guarantee of, indebtedness of the Company, Company or any Subsidiary of the Company or (B) is a guarantee by the Company or any Subsidiary of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose the Company of the indebtedness of any businesses, securities or assets (Person other than provisions requiring notice the Company or a wholly owned Subsidiary of or consent to assignment by any counterparty thereto)the Company;
(iiivi) each contract relating that grants with respect to outstanding Indebtedness (or commitments or guarantees in respect thereof) of any asset that is material to the Company or any of its Subsidiaries (whether incurredA) rights of first refusal, assumed, guaranteed rights of first negotiation or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution tosimilar pre-emptive rights, or other investment in(B) puts, calls or similar rights, to any Person (other than the Company or a wholly owned Subsidiary of the Company);
(vvii) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts was entered into for bona fide hedging purposes;
(vi) each employment contract to settle any material litigation and which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without imposes material liability to ongoing obligations on the Company or any of its Subsidiaries;
(viiviii) each contract containing any non-compete, exclusivity limiting or similar type of provision that materially restricts restricting the ability of the Company or any of its Subsidiaries (including Parent upon consummation to declare or pay dividends or make distributions in respect of the Transactions) to compete in any line of business their capital stock, partner interests, membership interests or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)equity interests;
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate pursuant to which (other than a wholly owned Subsidiary of the CompanyA) of the Company or any of its Subsidiaries grants to any third party any license, release, covenant not to ▇▇▇ or any of their respective “associates” similar right with respect to material Intellectual Property or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange ActB) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries receives a license, release, covenant not to indemnify ▇▇▇ or similar right with respect to any past material Intellectual Property owned by a third party (other than generally commercially available software in object code form);
(x) that is a partnership, limited liability company, joint venture or present directorsother similar agreement or arrangement relating to the formation, officerscreation, operation, management or employees control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 10% or more, other than with respect to any wholly owned Subsidiary of the Company Company;
(xi) that relates to the acquisition or disposition of any business or assets or the sale or supply of its Subsidiaries any services pursuant to which the Company or any of its Subsidiaries is has any liability in excess of $20,000,000 individually or $50,000,000 in the indemnitoraggregate;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(axii) that (A) cannot be voluntarily terminated pursuant requires or is expected to its terms within sixty (60) days after require in the Effective Time and (B) under which it is reasonably expected next year aggregate annual payments by or to the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time20,000,000; andor
(xiixiii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to which the Company or any Subsidiary of the Company.
(b) Collectivelyits Subsidiaries is a party, or by which any of them are bound, the contracts set forth ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to any such contract). Each such Contract described in Schedule 4.16(aclauses (i) of the Company Disclosure Letter are herein through (xiii) is referred to herein as the a “Company ContractsMaterial Contract.” Except as Each Company Material Contract (and each Contract that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Contract but for the exception of having been filed as an exhibit to a publicly available Company Contract Report) is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto as applicable and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, subjectand neither the Company nor any of its Subsidiaries, as to enforceabilitynor, to Creditors’ Rights. Except as the Knowledge of the Company, any other party to a Company Material Contract is in breach or violation of any provision of, or in default under, any Company Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would not reasonably be expected to haveconstitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. A true, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete complete and accurate copies copy of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have of this Agreement has previously been furnished to or otherwise made available to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Material Contracts. (a) Schedule 4.16(a) Except as set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and as permitted pursuant to Section 6.1, neither the Company Disclosure Letter sets forth nor any of its Subsidiaries is a true and complete list, as of the date of this Agreement, of:
party to or bound by (i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires any agreement relating to the incurring of Indebtedness by the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in an amount in excess of $25,000,000;
1,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as currently conducted (collectively, “Instruments of Indebtedness”); (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (iii) any non-competition or exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any respect (A) the ability of the Company or its Subsidiaries to solicit customers or (B) the manner in which, or the localities in which, all or any portion of the business of the Company and its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any non-competition or exclusive dealing agreement, or any other agreement or obligation of the type described in (A) or (B) of this clause (iii) which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries; (iv) any agreement providing for the indemnification, in excess of $2,000,000, by the Company or a Subsidiary of the Company of any Person other than standard form indemnity provisions in agreements with customers of the Company or any of its Subsidiaries entered into in the ordinary course of business consistent with past practice; (v) any joint venture or partnership agreement; (vi) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; (vii) any contract or agreement providing for any payments that are conditioned, in whole or in part, on a change of control of the Company or any of its Subsidiaries; (viii) any collective bargaining agreement; (ix) any agreement material to the Company and its Subsidiaries, taken as a whole, pertaining to the use of or granting any right to use or practice any rights under any Intellectual Property; (x) any agreements pursuant to which the Exchange ActCompany or any of its Subsidiaries leases any material real property or leases any material real property to third parties; (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company or its Subsidiaries; (xii) any contract relating to the supply of any material item used by the Company or a Subsidiary that is a sole source of supply; (xiii) any contract or other agreement entered into since January 1, 1997 with respect to the acquisition or divestiture of all or any portion of a business; or (xiv) any other contract or other agreement not otherwise made in the ordinary course of business consistent with past practice that (A) is not within any of the other categories described in this Section 4.16(a4.9(a) with respect but is material to the Company and its Subsidiaries taken as a whole, (B) would reasonably be expected to result in revenues, receipts, liabilities or expenditures, or otherwise involve an amount, in excess of $5,000,000 per year or (C) would reasonably be expected to materially delay or prevent the consummation of the Offer, the Merger or any Subsidiary of the transactions contemplated by this Agreement (the agreements, contracts and obligations set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and the agreements, contracts and obligations listed in clauses (i) through (xiv) being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 4.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contracts. True, correct and complete copies of each Company Material Contract have been made available to Parent.
(b) CollectivelyEach Company Material Contract is valid and binding on the Company (or, to the contracts set forth in Schedule 4.16(a) extent a Subsidiary of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto party, such Subsidiary) and, to the knowledge of the Company, each any other party thereto, and each Company Material Contract is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any of its Subsidiaries is in breach or default under any Company Material Contract or is aware of any condition that with the passage of time or the giving of notice or both would result in such a breach or default, except in each case where any such breaches or defaults would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company knows of, or has received written notice of, any breach or default under (nor, to the knowledge of the Company, is does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto except where any such violation or default would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the event of the repayment of the outstanding Indebtedness thereunder prior to expiration. “Indebtedness” means, with respect to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof Person, all obligations (including all amendments obligations in respect of principal, accrued interest, penalties, prepayment penalties, fees and modificationspremiums) of such Person (i) for borrowed money (including overdraft facilities), (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases (in accordance with GAAP), (v) in respect of letters of credit and bankers’ acceptances, (vi) under interest rate or currency swap or other derivative or hedging instruments and transactions (valued at the termination value thereof), (vii) secured by any Lien on property or assets owned by such Person, whether or not the obligations secured thereby have been furnished assumed, (viii) all obligations of such Person under any sale and lease back transaction, agreement to repurchase securities sold or otherwise made available to Parentother similar financing transaction and (ix) in the nature of guarantees of the obligations described in clauses (i) through (viii) above of any other Person.
Appears in 3 contracts
Sources: Merger Agreement (Raven Acquisition Corp.), Merger Agreement (Danaher Corp /De/), Merger Agreement (Tektronix Inc)
Material Contracts. (a) Schedule 4.16(aSection 3.16(a) of the Company Seller Disclosure Letter sets forth a true and complete list, lists each Contract in the following categories that is in force as of the date hereof and which either constitutes a Transferred Contract or is a Contract to which Seller or any of this Agreementits Affiliates (including any Acquired Company) is a party or by which any of their assets are bound and, of:in the case of Seller and any of its Affiliates other than the Acquired Companies, that relates to the FSS Business (in each case, other than Covered Insurance Policies) (such Contracts “Material Contracts”):
(i) each contract any Contract involving aggregate payments by Seller or its Affiliates with respect to the FSS Business to any Person (other than this Agreementan Insurance Producer) that involves a pending in excess of $[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020, or contemplated merger, business combination, acquisition, purchase, sale the delivery by Seller or divestiture that requires its Affiliates with respect to the Company FSS Business of goods or any of its Subsidiaries to dispose of or acquire assets or properties services with a fair market value in excess of $25,000,000[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(ii) each contract that grants any right of first refusal Intercompany Agreement involving aggregate payments by Seller or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice any Acquired Company) on the one hand, or any Acquired Company, on the other hand, in excess of or consent to assignment by any counterparty thereto)$[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(iii) each contract any Contract that is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to outstanding Indebtedness (the borrowing of money or commitments extension of credit or guarantees the direct or indirect guarantee of any obligation for borrowed money of any Person or any other Liability in respect thereof) of the indebtedness for borrowed money of any Person, in each case, involving Liabilities with respect to any Acquired Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) the FSS Business in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries[Redacted];
(iv) any Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, or limited liability company or other than contracts entered into similar agreement or arrangement in respect of the ordinary course business of business, each contract under which the any Acquired Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)FSS Business;
(v) each contract any Contract that involves limits, or constitutes an interest rate cappurports to limit, interest rate collarthe ability of Seller or its applicable Affiliates (or, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary after consummation of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company transactions contemplated hereby, Buyer or any of its Subsidiaries;
(viiAffiliates) each contract containing to engage in any non-compete, exclusivity business with any Person or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or in any geographic areaarea or during any period of time, to solicit customers in a way that would reasonably be expected to be material to any Acquired Company or the FSS Business or to manufacture, market, sell or administer any product, in each case, except for Contracts that limit the ability of an Acquired Company to solicit the employment of, or hire individuals employed by, other Persons;
(vi) any Contract that obligates Seller or its Affiliates to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party;
(vii) any Contract creating or granting any Encumbrance (other than Permitted Encumbrances) on any assets, properties or rights of an Acquired Company or on a Purchased Asset;
(viii) each partnershipany Contract that provides for the license to a Third Party of any material Business IP, joint venture, limited liability company or strategic alliance agreement for the license to which Seller or one of its Affiliates (primarily for the Company or a Subsidiary benefit of the Company is a party FSS Business) of any material Intellectual Property (other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases) under which Seller or any such agreement solely between or among of its Affiliates made payments with respect to the Company and its wholly owned Subsidiaries)FSS Business in an amount in excess of $[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to Contract under which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company any Person has directly or indirectly guaranteed any of its Subsidiaries will be required to pay fees, expenses Liabilities or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary obligations of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.Acquired Companies or
Appears in 3 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement, Master Transaction Agreement
Material Contracts. (a) Schedule 4.16(a) of Except as disclosed in the Specified Company Disclosure Letter sets SEC Documents, to the extent that it is reasonably apparent that the disclosure in the Specified Company SEC Documents is responsive to the matters set forth a true and complete listin this Section 3.12(a), as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires neither the Company or nor any of its Subsidiaries is a party to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment bound by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (contract, arrangement, commitment or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries understanding (whether incurred, assumed, guaranteed written or secured by any asset) in excess of $15,000,000oral), other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into hedging or similar arrangements in the ordinary course of businessbusiness consistent with past practice, each (i) which is a material contract under which the Company or a Subsidiary (as defined in Item 601(b)(10) of Regulation S-K of the Company hasSEC) to be performed after the date of this Agreement, directly (ii) which materially restrains, limits or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of impedes the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company ’s or any of its Subsidiaries;
’ ability to compete with or conduct any business or any line of business (viiincluding (A) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts geographic limitations on the ability of the Company Company’s or any of its Subsidiaries Subsidiaries’ activities or (including Parent upon consummation B) any confidentiality agreement, area of the Transactions) to compete in any line of business mutual interest or standstill agreement with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a third party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on the Company, on any of its Subsidiaries or, after the one handEffective Time, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company Parent or any of its Subsidiaries Subsidiaries); provided that (x) the Company need not disclose in the Company Disclosure Letter information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements prohibit the Company from disclosing the existence or any terms of their respective “associates” such agreements to third parties, except that if any such agreements contain any material restrictions, limits or “immediate family” members (as impediments on the Company’s or its Subsidiaries’ ability to compete with or conduct any business or any line of business, such terms are defined in Rule 12b-2 restrictions, limits and Rule 16a-1 impediments shall be disclosed without providing the identity of the Exchange Actparties to the agreements on the Company’s Disclosure Letter, and (y) the Company need not disclose on its Disclosure Letter to this Agreement information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements relate to a potential sale of all or substantially all of the assets or equity securities of the Company Manager(whether by merger or otherwise), except that the Company shall disclose on the Company’s Disclosure Letter the date of each such agreement, (iii) which is a material take-or-pay agreement or other hand;
similar agreement that entitles purchasers of production to receive delivery of Hydrocarbons without paying therefor, (xiv) each contract that obligates the Company which contains a put, call or any other right of its Subsidiaries to indemnify any past acquisition or present directors, officers, or employees of the Company or any of its Subsidiaries disposition pursuant to which the Company or any of its Subsidiaries is the indemnitor;
could be required to purchase or sell, as applicable, any equity interests (xiincluding licensing or leasehold interests) each vendorof any Person or assets that have a market value or purchase price of more than $5,000,000, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) or, with respect to calls on production, that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected obligate the Company or any of its Subsidiaries will be required to pay feessell Hydrocarbons at a price which is less than market value, expenses (v) which is a partnership or other costs joint venture relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company and its Subsidiaries, taken as a whole, in excess which the Company, directly or indirectly, owns more than a 10% voting or economic interest, or any interest valued at more than $10,000,000 without regard to percentage voting or economic interest, or (vi) which is otherwise material to the Company and its Subsidiaries taken as a whole. Each contract, arrangement, commitment or understanding of $50,000 following the Effective Time; and
type described in this Section 3.12(a) (xiii) through (vi), whether or not disclosed in the Specified Company SEC Documents, is referred to herein as a “Company Material Contract” (for purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC) to be performed after the date of this Agreement, whether or not otherwise described filed with the SEC or disclosed in the Specified Company SEC Documents, is a Company Material Contract). The Company has previously made available to Parent true, complete and correct copies of each Company Material Contract other than those which the Company is entitled to omit from the Company Disclosure Letter pursuant to the proviso to clause (ii) of the first sentence of this Section 4.16(a3.12(a).
(i) with respect Each Company Material Contract is valid and binding and in full force and effect, (ii) the Company and each of its Subsidiaries has performed in all respects all obligations required to be performed by it to date under each Company Material Contract, (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute, a default on the part of the Company or any Subsidiary of its Subsidiaries under any such Company Material Contract and (iv) to the Knowledge of the Company.
(b) Collectively, the contracts set forth no other party to such Company Material Contract is in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havedefault in any respect thereunder, except in each case for any invalidity, nonperformance, event, condition or default that, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party theretohas not had, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not be reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of Effect on the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp), Merger Agreement (Petrohawk Energy Corp)
Material Contracts. (a) Schedule 4.16(aAll Contracts required to be filed as exhibits to the Monsoon SEC Documents have been so filed in a timely manner. Section 5.17(a) of the Company Monsoon Disclosure Letter sets forth a true and complete list, as of the date hereof, of this Agreementeach of the following Contracts to which Monsoon or any Monsoon Subsidiary is a party or by which Monsoon or any Monsoon Subsidiary or any of their respective properties or assets is bound (including any amendments, of:supplements and modifications thereto):
(i) each contract (any non-competition agreement, non-solicitation agreement, exclusive distribution, franchise or licensing agreement or other than this Agreement) Contract that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company includes any provision which materially limits Monsoon or any Monsoon Subsidiary from engaging in any activity or conducting business with any Person or in any geographic area or from soliciting employees or personnel of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000any Person;
(ii) any Contract that relates to the formation, creation, governance or control of any partnership, joint venture or similar arrangement, or any collaboration, cooperation or partnering Contract, in each contract case that grants any right of first refusal or right of first offer or that limits is material to the ability Monsoon Business and for which the closing of the Companyrelevant transaction has not occurred;
(iii) any Contract that relates to the acquisition or disposition of any business, any Subsidiary whether by merger, sale of stock, sale of assets or otherwise, in each case for which the closing of the Company relevant transaction has not occurred;
(iv) any Contract with any Related Person of Monsoon or any Monsoon Subsidiary (other than the agreements covered by clause (i) and any Monsoon Benefit Plan);
(v) any material Contract pursuant to which any Third Party Approval is required pursuant to a “change of control” or similar clause;
(vi) any Contract entered into other than on commercial arm’s length terms;
(vii) any currency exchange, interest rate exchange, commodity exchange or similar Contract;
(viii) any Contract entered into by Monsoon or any Monsoon Subsidiary in connection with the settlement or other resolution of any material Action imposing operational restrictions or conduct requirements on Monsoon or any Monsoon Subsidiary or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty theretoincluding the Indigo Group Companies after the Closing Date);
(iiiix) each contract relating to outstanding Indebtedness any Contract (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts Contracts entered into in the ordinary course of business, each contract under business consistent with past practice) which the Company provides for aggregate future sums due from Monsoon or a any Monsoon Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit an aggregate future liability (contingent or capital contribution to, or other investment in, otherwise) to any Person (in each case other than the Company Monsoon or a Subsidiary any Monsoon Subsidiary) in excess of the Company);$1,000,000; or
(vx) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or any other contract or agreement relating to a forward swap or Contract other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract than as set forth above to which the Company Monsoon or a any Monsoon Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or by which it or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity assets or similar type of provision businesses is bound or subject that materially restricts is material to the ability of Monsoon Business or the Company use or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any operation of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyassets.
(b) Collectively, the contracts (i) All Contracts set forth or required to be set forth in Schedule 4.16(aSection 5.17(a) of the Company Monsoon Disclosure Letter are herein referred or filed or required to be filed as exhibits to the Monsoon SEC Documents (the “Company Monsoon Material Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, ”) are valid, binding and in full force and effect and are enforceable by Monsoon or its applicable Subsidiary in accordance with their terms (except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally, or by principles governing the availability of equitable remedies), (ii) Monsoon or its terms on applicable Subsidiary has performed all material obligations required to be performed by it under the Company Monsoon Material Contracts, and each it is not (with or without notice or lapse of its Subsidiaries that is a party thereto time, or both) in material breach or material default thereunder and, to the knowledge of the CompanyMonsoon, each no other party theretoto any Monsoon Material Contract is (with or without notice or lapse of time, and is or both) in full force and effectbreach or default thereunder, subject(iii) since January 1, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect2014, neither the Company Monsoon nor any of its Subsidiaries is in breach has received written notice of any actual, alleged, possible or default under potential material violation of, or material failure to comply with, any Company Contract norterm or requirement of any Monsoon Material Contract, to the knowledge and (iv) neither Monsoon nor any of its Subsidiaries has received any written notice of the Company, is intention of any other party to cancel, terminate, change the scope of rights under or fail to renew any such Company Contract in breach or default thereunderMonsoon Material Contract. Complete True and accurate complete copies of each Company Contract written Monsoon Material Contract, and a summary of each oral Monsoon Material Contract, listed in effect as Section 5.17(a) of the date hereof Monsoon Disclosure Letter (including all written modifications and amendments thereto and modificationswaivers thereunder) have been furnished to or otherwise made available to Indigo Parent.
(c) Upon Closing, save as disclosed in Section 5.17(c) of the Monsoon Disclosure Letter, no Contract to which Monsoon or any Monsoon Subsidiary is a party will be in effect which purports to legally bind, or impose any duty, obligation or other Liability of any kind (except for any confidentiality obligations that may arise as a result of Monsoon or any Monsoon Subsidiary sharing any information with Indigo Parent or any of its Affiliates that is subject to the terms of a confidentiality agreement with a third party) on, either expressly or through a reference to affiliates of Monsoon or the Monsoon Subsidiary that is party thereto (or words of similar import), Indigo Parent or any Affiliate thereof (other than Monsoon or any Monsoon Subsidiary).
Appears in 3 contracts
Sources: Transaction Agreement, Transaction Agreement (Naspers LTD), Transaction Agreement (MakeMyTrip LTD)
Material Contracts. (a) Schedule 4.16(a) of Except as set forth in the exhibit index for the Company’s Annual Report on Form 10-K for the year ended September 30, 2005 or as permitted pursuant to Section 6.1, neither the Company Disclosure Letter sets forth nor any of its Subsidiaries is a true and complete list, as of the date of this Agreement, of:
party to or bound by (i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires any agreement relating to the incurring of Indebtedness by the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in an amount in excess of $25,000,000;
2,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as currently conducted (collectively, “Instruments of Indebtedness”), (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC), (iii) not otherwise any non-competition or exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any material respect (A) the ability of the Company or its Subsidiaries to solicit customers or (B) the manner in which, or the localities in which, all or any portion of the business of the Company and its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any non-competition or exclusive dealing agreement, or any other agreement or obligation of the type described in (A) or (B) of this Section 4.16(aclause (iii) which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries, (iv) any agreement providing for the indemnification, in excess of $1,000,000, by the Company or a Subsidiary of the Company of any Person other than standard form indemnity provisions in agreements with respect to customers of the Company or any Subsidiary of its Subsidiaries, (v) any joint venture or partnership agreement, (vi) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the CompanyCompany or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business, (vii) any contract or agreement providing for any payments in excess of $1,000,000 that are conditioned, in whole or in part, on a change of control of the Company or any of its Subsidiaries, (viii) any collective bargaining agreement, (ix) any agreement material to the Company and its Subsidiaries, taken as a whole, pertaining to the use of or granting any right to use or practice any rights under any Intellectual Property, (x) any agreements pursuant to which the Company or any of its Subsidiaries leases any material real property or leases any material real property to third parties, (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company or its Subsidiaries, (xii) any contract or other agreement to which Apogent Technologies Inc. (“Former Company Parent”) or any of its present or former Subsidiaries is a party or otherwise bound, and (xiii) any other contract or other agreement not made in the ordinary course of business consistent with past practice that (A) is material to the Company and its Subsidiaries taken as a whole or (B) would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated by this Agreement (the agreements, contracts and obligations listed in clauses (i) through (xiii) being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 4.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contracts.
(b) CollectivelyEach Company Material Contract is valid and binding on the Company (or, to the contracts set forth in Schedule 4.16(a) extent a Subsidiary of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto party, such Subsidiary) and, to the knowledge of the Company, each any other party thereto, and each Company Material Contract is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any of its Subsidiaries is in breach or default under any Company Material Contract or is aware of any condition that with the passage of time or the giving of notice or both would result in such a breach or default, except in each case where any such breaches or defaults would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company knows of, or has received written notice of, any breach or default under (nor, to the knowledge of the Company, is does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party to thereto except where any such Company Contract in breach violation or default thereunder. Complete and accurate copies would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company.
(c) There are no provisions in any Instrument of each Company Contract in effect as Indebtedness that provide any restrictions on the repayment of the date hereof outstanding Indebtedness thereunder, or that require that any financial payment (including other than payment of outstanding principal and accrued interest) be made in the event of the repayment of the outstanding Indebtedness thereunder prior to expiration. For purposes of this Agreement, “Indebtedness” of a Person shall mean (i) all amendments obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes and modificationssimilar instruments, (iii) have been furnished all leases of such Person capitalized in accordance with GAAP, and (iv) all obligations of such Person under sale-and-lease back transactions, agreements to or otherwise made available to Parentrepurchase securities sold and other similar financing transactions.
Appears in 3 contracts
Sources: Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true Except for this Agreement, Parent’s Benefit Plans and complete listagreements filed as exhibits to Parent SEC Documents, as of the date of this Agreement, ofneither Parent nor any of its Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described any Contract that (A) expressly imposes any material restriction on the right or ability of Parent or any of its Subsidiaries to compete with any other person or acquire or dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of Parent or any of its Subsidiaries in this Section 4.16(aa material manner;
(iii) with respect any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of Parent or any of its Subsidiaries in an amount in excess of $100 million;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between Parent and its Subsidiaries or among Parent’s Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any Subsidiary of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vi) any acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by Parent or any of its Subsidiaries in excess of $100 million; and
(vii) any material lease or sublease with respect to a Parent Leased Real Property. All contracts of the Companytypes referred to in clauses (i) through (vii) above are referred to herein as “Parent Material Contracts.”
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Parent Material Adverse Effect, each Company neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any Parent Material Contract. To the knowledge of Parent, no other party to any Parent Material Contract is legal, valid, binding and enforceable in accordance with its breach of or default under the terms on the Company and each of its Subsidiaries that any Parent Material Contract. Each Parent Material Contract is a valid and binding obligation of Parent or the Subsidiary of Parent which is party thereto and, to the knowledge of the CompanyParent, of each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, subject to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentRemedies Exceptions.
Appears in 3 contracts
Sources: Merger Agreement (SemGroup Corp), Agreement and Plan of Merger (Energy Transfer LP), Merger Agreement
Material Contracts. (a) Schedule 4.16(aSection 3.15(a) of the Company Disclosure Letter sets forth a true and complete list, as lists the following types of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant Contracts to which the Company or any of its Subsidiaries Company Subsidiary is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company a party or any of its Subsidiaries will be their respective assets are bound (such Contracts as are required to pay fees, expenses or other costs be set forth in excess Section 3.15(a) of $50,000 following the Effective Time; andDisclosure Letter being the “Material Contracts”):
(xiii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Securities Act) not otherwise described in this Section 4.16(a) with respect to the Company and the Company Subsidiaries;
(ii) all Contracts evidencing indebtedness for borrowed money, whether as borrower or lender;
(iii) all joint venture, partnership, strategic alliance and business acquisition or divestiture Contracts under which the Company or a Company Subsidiary has any material obligation;
(iv) all Contracts relating to issuances of securities of the Company or any Company Subsidiary (other than the Company Stock Awards);
(v) all Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party and that are material to the business and operations of the Company and the Company Subsidiaries, taken as a whole;
(vi) all Contracts that materially limit, or purport to materially limit the ability of the Company or any Company Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(vii) all employment, consulting, change in control, “golden parachute,” severance or termination Contracts (in each case with respect to which the Company or any Company Subsidiary has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company or any Company Subsidiary, (y) member of the Company Board or the board of directors of any Company Subsidiary or (z) employee providing for an annual base salary in excess of $100,000;
(viii) all Contracts providing for indemnification or any guaranty by the Company or any Company Subsidiary, in each case that is material to the Company and the Company Subsidiaries, taken as a whole, other than any guaranty by the Company or a Company Subsidiary of any of the Companyobligations of the Company or Company Subsidiary;
(ix) all Contracts relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of the Company Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $250,000;
(x) all material Contracts that obligate the Company or any of the Company Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(xi) all Contracts that prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of the Company Subsidiaries, prohibit the pledging of the capital stock of the Company or any of the Company Subsidiaries or prohibit the issuance of any guarantee by the Company or any of the Company Subsidiaries; and
(xii) all other Contracts under which the Company or any of the Company Subsidiaries is obligated to make payments or incur costs in excess of $500,000 in any year and which are not otherwise described in clauses (i)–(xi) above. The Company has made available to Parent correct and complete copies of all Material Contracts, including any amendments thereto. Except as expressly described in Section 3.15(a), Material Contracts shall not include (A) Insurance Contracts issued by any Company Subsidiary in the ordinary course of business, (B) Reinsurance Contracts (whether assumed or ceded) entered into by a Company Subsidiary in the ordinary course of business, (C) Contracts between the Company or any Company Subsidiary, on one hand, and any broker, managing general underwriter or managing general agent, on the other hand, entered into in the ordinary course of business and (D) Contracts between the Cost Management Subsidiary and a recipient of, or consultant or employee for, medical and indemnity care cost management services, entered into in the ordinary course of business.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, constitute a Company Material Adverse EffectEffect or as set forth in Section 3.15(b) of the Disclosure Letter, (i) each Company Material Contract is a legal, validvalid and binding agreement, binding in full force and effect and enforceable against the Company or applicable Company Subsidiary in accordance with its terms on terms, (ii) none of the Company and each of its Subsidiaries that is a party thereto andor any Company Subsidiary or, to the knowledge of the Company, each other any third party thereto, has received any claim of default under or cancellation of any Material Contract and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither none of the Company nor or any of its Subsidiaries Company Subsidiary is in breach or violation of, or default under under, any Company Contract nor, Material Contract; (iii) to the knowledge of the Company’s knowledge, is any no other party to any such Company Contract is in breach or violation of, or default thereunder. Complete under, any Material Contract; and accurate copies (iv) neither the execution of each Company Contract in effect as this Agreement nor the consummation of the date hereof (including all amendments and modifications) have been furnished Transactions shall constitute a default under, give rise to cancellation rights under, or otherwise made available to Parentadversely affect any of the material rights of the Company or any Company Subsidiary under any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Enstar Group LTD), Merger Agreement (SeaBright Holdings, Inc.)
Material Contracts. (a) Schedule 4.16(a) Except as otherwise reflected in the Beneficial Financial Statements and the Beneficial SEC Reports, none of the Company Disclosure Letter sets forth a true and complete listBeneficial Entities, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or nor any of their respective Affiliates to ownAssets, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurredoperations, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements to, is bound by or subject to any Contract, (a) that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC) and that has not been filed as an exhibit to one of the Beneficial SEC Reports, (b) which prohibits or materially restricts any Beneficial Entity (or, following consummation of the transactions contemplated by this Agreement, WSFS) from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (c) which limits the payment of dividends by any Beneficial Entity, (d) pursuant to which any Beneficial Entity has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or Assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (e) between any Beneficial Entity, on the one hand, and (i) any officer or director of any Beneficial Entity, or (ii) to the Knowledge of Beneficial, any (x) record or beneficial owner of five percent or more of the voting securities of Beneficial, (y) Affiliate or family member of any such officer, director or record or beneficial owner or (z) any other Affiliate of Beneficial, on the other hand, except those of a type available to employees of Beneficial generally, (f) that provides for indemnification by any Beneficial Entity of any Person, except for non-material Contracts entered into in the Ordinary Course, (g) with or to a labor union or guild (including any collective bargaining agreement), (h) that grants any “most favored nation” right, right of first refusal, right of first offer or similar right with respect to any material Assets, or rights of any Beneficial Entity, taken as a whole, or (i) any other Contract or amendment thereto that is material to any Beneficial Entity or their respective business or Assets and not otherwise entered into in the Ordinary Course. Each Contract of the type described in this Section 4.16(a) with respect to the Company 4.18, whether or any Subsidiary of the Company.
(b) Collectively, the contracts not set forth in Schedule 4.16(a) of the Company Beneficial’s Disclosure Letter are herein Memorandum together with all Contracts referred to in Sections 4.12 and 4.17(a), are referred to herein as the “Company Beneficial Contracts.” Except as would not reasonably be expected With respect to have, individually or in each Beneficial Contract: (i) the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, Beneficial Entity and is in full force and effecteffect and is enforceable in accordance with its terms, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries (ii) no Beneficial Entity is in breach Default thereunder, (iii) no Beneficial Entity has repudiated or default under waived any Company material provision of any such Contract nor, to the knowledge of the Company, is any and (iv) no other party to any such Company Contract is, to the Knowledge of Beneficial, in breach Default or default has repudiated or waived any material provision thereunder. Complete and accurate copies of each Company Contract in effect as All of the date hereof (including all amendments and modifications) Beneficial Contracts have been furnished to Previously Disclosed. All of the indebtedness of any Beneficial Entity for money borrowed is prepayable at any time by such Beneficial Entity without penalty or otherwise made available to Parentpremium.
Appears in 2 contracts
Sources: Merger Agreement (WSFS Financial Corp), Merger Agreement (Beneficial Bancorp Inc.)
Material Contracts. (a) Schedule 4.16(a5.09(a) of the Company Disclosure Letter sets forth a true and complete listlists, as of the date of this Agreement, of:the following types of Contracts and agreements to which any Acquired Company is a party (such Contracts and agreements as are set forth, or required to be set forth, on Schedule 5.09(a), the “Material Contracts”):
(i) each contract (pension, profit sharing or retirement plans, other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company any Multiemployer Plan or any of its Subsidiaries to dispose of Company Plan, whether or acquire assets not set forth in Section 5.15 or properties with a fair market value in excess of $25,000,000the Schedules relating thereto;
(ii) each contract that grants any right of first refusal Contracts and agreements pursuant to which an Acquired Company has obligated one or right of first offer or that limits the ability more of the Company, any Subsidiary of the Company or any of their respective Affiliates Acquired Companies to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent make capital expenditures that would reasonably be expected to assignment by any counterparty thereto)exceed $100,000;
(iii) each contract relating Contracts and agreements with consideration paid or payable to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) Acquired Company of more than $250,000, in excess of $15,000,000the aggregate, other than agreements solely among the Company and its wholly owned Subsidiariesover any 12-month period;
(iv) Contracts for the services of any officer, director, individual employee (except, as it relates to any former employee, only to the extent of ongoing liability), independent contractor or individual service provider that cannot be terminated on 60 or fewer days’ notice without any liability or financial obligation incurred by any Acquired Company;
(v) agreements, indentures or other evidence of Indebtedness relating to the borrowing of money by the Acquired Companies or to mortgaging, pledging or otherwise placing a Lien (other than contracts a Permitted Lien) on any portion of the assets of the Acquired Companies;
(vi) guaranties of any obligation for Borrowed Money Debt or other material guaranties;
(vii) any individual lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in any 12-month period;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the aggregate rental payments exceed (or are expected to exceed) $100,000 in a 12-month period;
(ix) other than purchase orders entered into in the ordinary course of business, any Contracts with any customers or suppliers of the Acquired Companies, in each contract case involving consideration in excess of $750,000;
(x) Contracts containing any grant, license, sublicense, right, consent, waiver, permission or covenant not to assert any claims relating to or under any Intellectual Property (A) by any of the Acquired Companies to a third party or (B) by a third party to any of the Acquired Companies (excluding licenses of commercially available, non-customized, off-the-shelf Software available on standard terms for a potential annual or aggregate license fee (whichever is higher) of no more than $50,000);
(xi) Contracts providing for the invention, creation, conception or other development of any Intellectual Property (A) by any of the Acquired Companies for any third party, (B) by any third party for any of the Acquired Companies (other than any Personnel IP Contracts) or (C) jointly by any of the Acquired Companies and any third party;
(xii) all Contracts providing for the assignment or transfer of any ownership interest in any Intellectual Property by (A) any of the Acquired Companies to any third party or (B) any third party to any of the Acquired Companies (other than any Personnel IP Contracts);
(xiii) Contracts prohibiting or restricting in any respect the ability of any Acquired Company to engage in any business, to operate in any geographical area or to compete with any Person;
(xiv) Contracts relating to the acquisition or disposition (whether in one transaction or a series of transactions and whether by merger, sale, lease, purchase or otherwise) of any equity interests, operating business, or material assets of any Person or material assets or material line of business;
(xv) each joint venture Contract, partnership agreement, limited liability company agreement, strategic alliance agreement or other similar Contract with a third party;
(xvi) Contracts providing for the grant of an option or a first-refusal, first-offer or similar preferential right to purchase, lease or acquire any material asset of the Acquired Companies;
(xvii) Contracts granting exclusivity, “most-favored nation”, “take or pay” or similar rights, or that require or purport to require any Acquired Company to acquire all or a specified portion of its requirements of a particular material good or service from any Person;
(xviii) Contracts with any supplier (A) that is a sole source supplier to the Acquired Companies or (B) from which the Acquired Companies source substantially all of their supply of any material product or service, except in each case where the Acquired Companies would likely be able to replace such source of supply with a substitute supply at substantially the same volume and quality, on substantially comparable terms and without material delay;
(xix) Contracts under which any of the compensation or benefits thereunder, to any Person that is a party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of the Transactions or the value of any of the benefits of which shall be calculated on the basis of any of the Transactions, excluding any Multiemployer Plan or any Company Plan;
(xx) Contracts that currently are, or at any point in the three-year period ending on the date of this Agreement were, in effect (A) to which any present or former director, officer, employee, stockholder or holder of derivative securities of the Acquired Companies, or any member of any such Person’s immediate family, or any entity owned or controlled by any such Person, is a party, excluding any Multiemployer Plan or any Company Plan or other benefit or compensation plan or other plans, programs, policies, commitments or arrangements or (B) pursuant to which any Acquired Company receives any “preferred pricing” or similar benefit that is utilized by such Acquired Company in the ordinary course;
(xxi) any Contracts (A) of the Company involving the payment of royalties or other amounts calculated based upon the revenues or income of any Acquired Company or income or revenues related to any product of any Acquired Company that deviate from the Company’s standard form agreements made available to Buyer, or (B) with the Company’s top 10 licensing partners as measured by revenue during the 12 months prior to the date of this Agreement;
(xxii) Contracts in respect of any settlements or coexistence agreements with respect to any pending or threatened action (A) entered into within 12 months prior to the date of this Agreement, or (B) with respect to which any unsatisfied amounts or ongoing obligations remain outstanding;
(xxiii) any Company Related Party Contracts;
(xxiv) Contracts with any Governmental Authority or any Contract with a third party that is a party to a Contract with a Governmental Authority with respect to the subject matter of such underlying Contract;
(xxv) any documents not otherwise covered by (i)-(xxiv) of this Section 5.09(a) that may be required to be filed by the Company as an exhibit for a registration statement on Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; and
(xxvi) any written offer or proposal that, if accepted, would constitute any of the foregoing.
(b) Each Material Contract is in full force and effect, and is the legal, valid and binding obligation of either the Company or a Subsidiary of the Company hasthat is party thereto, directly and, to the Company’s knowledge, of the other parties thereto enforceable against each of them in accordance with its terms (in each case, subject to the Enforceability Exceptions). Except as set forth on Schedule 5.09(b), no Acquired Company is in material default under any Material Contract, and, to the Company’s knowledge, the other party to each of the Material Contracts is not in material default thereunder. Except as set forth on Schedule 5.09(b), no event has occurred that with the lapse of time or indirectly, made any advance, loan, extension the giving of credit notice or capital contribution to, both would constitute a material breach or other investment in, any Person (other than default on the Company or a Subsidiary part of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the CompanyCompany or, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of to the Company) of the Company or ’s knowledge, any of its Subsidiaries or other party under any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to Contract. To the knowledge of the Company, each other (i) no party to any Material Contract has exercised any termination rights with respect thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor (ii) no party has given written notice of any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party material dispute with respect to any such Material Contract. The Company Contract in breach or default thereunder. Complete has made available to Buyer true, correct and accurate complete copies of each Company Contract in effect as of the date hereof (including Material Contract, together with all amendments and modifications) have been furnished to amendments, modifications or otherwise made available to Parentsupplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Edify Acquisition Corp.), Merger Agreement (Unique Logistics International, Inc.)
Material Contracts. (a) Schedule 4.16(aSection 5.23(a) of the Company Disclosure Letter sets forth a true true, correct and complete list, as of the date hereof, and the Company has made available to Parent and Bidco (or Parent’s outside counsel) true, correct and complete (subject to any necessary redactions of this Agreementprivileged or competitively sensitive information) copies of, of:
(i) each contract Contract (other than this AgreementCompany Benefit Plans), which is in effect as of the date hereof (or pursuant to which the Company or its Subsidiaries has any continuing material obligations thereunder) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires and under which the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to by which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” properties or “immediate family” members (as such terms assets are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;bound that:
(xi) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following be filed by the Effective Time; and
(xii) each Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act or disclosed by the Company on the Company’s Annual Report on Form 10-K for the year ended December 31, 2024 or any Company SEC filings filed after the date of filing on such Form 10-K until the date of this Agreement;
(ii) not otherwise described involves, by its terms, aggregate payments by the Company or its Subsidiaries or aggregate payments payable to the Company or its Subsidiaries under such Contract of more than $500,000 in this Section 4.16(athe most recent fiscal year ended December 31, 2024 or in any single fiscal year thereafter (other than Contracts with professional service providers);
(iii) (A) contains covenants that limit in any material respect the freedom of the Company or any of its Subsidiaries to compete or engage in any line of business or in any geographic area, (B) restricts the right of the Company or any of its Subsidiaries to use the Company Intellectual Property Rights (C) contains any “most favored nation”, “right of first offer”, “right of first access”, “right of first look”, “right of first negotiation”, or “right of first refusal” or similar rights or (D) contains any exclusivity obligations or similar restrictions;
(iv) involves any severance, termination or similar payment to any current or former Company Service Provider pursuant to which the Company or its Subsidiaries may be obligated to make any retention bonus or similar payment to any current or former Company Service Provider;
(v) provides for indemnification (or reimbursement or advancement of legal fees or expenses, other than advances for reimbursable ordinary course business expenses or advances of expenses to directors and employees pursuant to the Company Organizational Documents or existing indemnification agreements) of any current or former director, officer or employee of the Company or its Subsidiaries;
(vi) provides for or governs the formation, creation, investment in, operation, management or control of any partnership, joint venture, strategic alliance, collaboration or material research or development project or similar arrangement;
(vii) is a Real Property Lease;
(viii) provides for the grant by any third party to the Company or any of its Subsidiaries of any license, sublicense, right, interest or option with respect to any Intellectual Property Rights that are material to the business of the Company or its Subsidiaries or applicable to any Company Product or field of use, other than Incidental Contracts;
(ix) provides for the grant by the Company or any of its Subsidiaries to any third party of any license, sublicense, right, interest or option with respect to any Company Intellectual Property Rights, other than Incidental Contracts;
(x) (A) governs the terms of any current ongoing clinical Research Program (including the generation or collection of data from any current ongoing clinical Research Program) or (B) specifically provides for the generation of clinical data in connection with any Company Product or current ongoing clinical Research Program or the generation of non-clinical or pre-clinical data outside of the ordinary course of business, in each case of (A) and (B), other than Contracts entered into in the ordinary course of business solely for the conduct of clinical trials substantially consistent with the form agreement made available to Parent;
(xi) involves the provision by any third party of research or development services to the Company or any Subsidiary with respect to Company Products or relates to distribution, sale, importation, exportation, marketing partnership or co-promotion activities with respect to any Company Product;
(xii) involves (A) the disposition, directly or indirectly, of any material assets or business of the CompanyCompany or its Subsidiaries or (B) the acquisition, directly or indirectly (by merger or otherwise), of a business, capital stock or other Equity Securities of another Person or material assets of another Person;
(xiii) involves the manufacture or supply of any Company Product, including any active pharmaceutical ingredient or other material component of such Company Product, by or for the Company or any Subsidiary, including any “take or pay” agreement that provides for minimum supply or minimum purchase obligations by the Company or any Subsidiary;
(xiv) contains continuing obligations involving (A) “earnout”, “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones, (B) payment of royalties or other amounts calculated based upon sales, revenue, income or other similar measure of the Company or any Company Product or (C) any deferred payments for the purchase of any properties, assets or services;
(xv) obligates the Company or any of its Subsidiaries to make any capital contribution, loan or similar expenditure;
(xvi) is a Contract with (A) a Governmental Authority or (B) any academic institution, other than Contracts with academic institutions entered into in the ordinary course of business solely for the conduct of clinical trials;
(xvii) requires the Company or any of its Subsidiaries (or, following the Closing, Parent or any of its Affiliates) to use commercially reasonable, diligent (or similar) efforts related to research, development, regulatory approval, commercialization, sales or marketing of any Company Product;
(xviii) relates to indebtedness for borrowed money or the granting of Liens over material assets or properties of the Company and its Subsidiaries (other than Permitted Liens);
(xix) involves the settlement or compromise of any pending or threatened Legal Proceeding; or
(xx) limits the freedom or right of the Company or its Subsidiaries to solicit or hire any employees or other service providers, other than commercial arrangements entered into in the ordinary course of business, provided that any limitations or restrictions set forth therein contain customary carveouts and are not material to the Company and its Subsidiaries. Each Contract of the type described in clauses (i) through (xx) above, whether entered prior to, on or after the date hereof, other than a Company Benefit Plan, is referred to herein as a “Material Contract”.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto Subsidiaries, as applicable and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, subjectsubject to the Enforceability Exceptions, as and (ii) the Company and its Subsidiaries have complied with all obligations required to enforceabilitybe performed or complied with by it under each Material Contract, (iii) there is no default under any Material Contract by the Company or its Subsidiaries, or, to Creditors’ Rights. Except as would not reasonably be expected the Knowledge of the Company, by any other party thereto and (iv) to have, individually or in the aggregate, a Company Material Adverse EffectKnowledge of the Company, neither the Company nor any of its Subsidiaries is in breach or default under has received any Company Contract nor, to the knowledge of the Company, is written notice from any other third party to any Material Contract that such Company party intends to terminate such Material Contract in breach for any default or alleged default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Transaction Agreement (Verona Pharma PLC), Transaction Agreement (Verona Pharma PLC)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth REIT III has made available to REIT II a true true, correct and complete list, copy of each Contract in effect as of the date hereof to which REIT III or any REIT III Subsidiary is a party or by which any of this Agreement, ofits properties or assets are bound that:
(i) each contract is required to be filed with the SEC as an exhibit to REIT III’s Annual Report on Form 10-K for the year ending December 31, 2019 or any subsequent current or periodic report;
(ii) is required to be described pursuant to Item 401 of Regulation S-K promulgated under the Securities Act;
(iii) obligates the REIT III Parties or any other REIT III Subsidiary to make non-contingent aggregate annual expenditures (other than principal or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $200,000 and is not cancelable within 90 days without material penalty to the REIT III Parties or any other REIT III Subsidiary;
(iv) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that materially restricts the business of the REIT III Parties or any other REIT III Subsidiary, including upon consummation of the transactions contemplated by this Agreement, or that otherwise restricts the lines of business conducted by the REIT III Parties or any other REIT III Subsidiary or the geographic area in which the REIT III Parties or any other REIT III Subsidiary may conduct business;
(v) is a Contract that involves obligates the REIT III Parties or any other REIT III Subsidiary to indemnify any past or present directors, officers, or employees of the REIT III Parties or any other REIT III Subsidiary pursuant to which the REIT III Parties or any other REIT III Subsidiary is the indemnitor;
(vi) constitutes (A) an Indebtedness obligation of the REIT III Parties or any other REIT III Subsidiary with a pending principal amount as of the date hereof greater than $200,000 or contemplated merger(B) a Contract under which (1) any Person including REIT III or a REIT III Subsidiary, business combinationhas directly or indirectly guaranteed Indebtedness, acquisitionliabilities or obligations of REIT III or REIT III Subsidiary or (2) REIT III or a REIT III Subsidiary has directly or indirectly guaranteed Indebtedness, purchaseliabilities or obligations of any Person, sale including REIT III or divestiture that another REIT III Subsidiary (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vii) requires the Company REIT III Parties or any of its Subsidiaries other REIT III Subsidiary to dispose of or acquire assets or properties that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $25,000,000200,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(iiviii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement Contract relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(viix) each employment contract constitutes a loan to which the Company or a Subsidiary of the Company is a party any Person (other than at-will arrangements that can be terminated at any time without material liability to the Company a Wholly Owned REIT III Subsidiary) by REIT III or any REIT III Subsidiary in an amount in excess of its Subsidiaries$200,000;
(viix) each contract containing any non-compete, exclusivity or similar type sets forth the operational terms of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, a joint venture, partnership, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company REIT III Parties or any other REIT III Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than with a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorthird party;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after prohibits the Effective Time and (B) under which it is reasonably expected pledging of the Company capital stock of REIT III or any REIT III Subsidiary or prohibits the issuance of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andguarantees by any REIT III Subsidiary;
(xii) each “contains covenants expressly limiting, in any material contract” respect, the ability of REIT III or any REIT III Subsidiary to sell, transfer, pledge or otherwise dispose of any material assets or business of REIT III or any REIT III Subsidiary;
(as such term is defined in Item 601(b)(10xiii) contains restrictions on the ability of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect REIT III or any REIT III Subsidiary to pay dividends or other distributions (other than pursuant to the Company or any Subsidiary organizational documents of the Company.REIT III and REIT III Subsidiaries;
(bxiv) Collectivelyis with a Governmental Authority;
(xv) has continuing “earn-out” or other similar contingent purchase price payment obligations, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveeach case that could result in payments, individually or in the aggregate, in excess of $200,000;
(xvi) is an employment Contract or consulting Contract;
(xvii) is a Company collective bargaining agreement or other Contract with any labor organization, union or association;
(xviii) is a Contract with any professional employer organization, staffing agency, temporary employee agency, or similar company or service provider;
(xix) provides severance, retention, or transaction bonus payments, change of control payments, or similar compensation;
(xx) is a settlement agreement or release of claims with any current employee or with any former employee within the past five years;
(xxi) is a lease, sublease, license or other rental agreement or occupancy agreement (written or verbal) which grants any possessory interest in and to any space situated on or in the REIT III Properties or otherwise gives rights with regard to use of the REIT III Properties; or
(xxii) is both (A) not made in the ordinary course of business and (B) material to REIT III and the REIT III Subsidiaries, taken as a whole.
(b) Each Contract in any of the categories set forth in Section 4.12(a) to which the REIT III Parties or any other REIT III Subsidiary is a party or by which it is bound as of the date hereof is referred to herein as a “REIT III Material Adverse Effect, each Company Contract.”
(c) Each REIT III Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company REIT III Parties and each of its Subsidiaries other REIT III Subsidiary that is a party thereto and, to the knowledge Knowledge of the CompanyREIT III, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). The REIT III Parties and each other REIT III Subsidiary has performed all obligations required to enforceabilitybe performed by it prior to the date hereof under each REIT III Material Contract and, to Creditors’ Rightsthe Knowledge of REIT III, each other party thereto has performed all obligations required to be performed by it under such REIT III Material Contract prior to the date hereof. Except as None of the REIT III Parties or any other REIT III Subsidiary, nor, to the Knowledge of REIT III, any other party thereto, is in breach or violation of, or default under, any REIT III Material Contract, and no event has occurred that, with notice or lapse of time or both, would not reasonably be expected to haveconstitute a violation, breach or default under any REIT III Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a Company REIT III Material Adverse Effect. None of the REIT III Parties or any other REIT III Subsidiary has received notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any REIT III Material Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a REIT III Material Adverse Effect. Since December 31, 2019, neither the Company REIT III nor any REIT III Subsidiary has received any written notice of its Subsidiaries the intention of any party to cancel, terminate, materially change the scope of rights under or fail to renew any REIT III Material Contract.
(d) Section 4.12(d) of the REIT III Disclosure Letter lists each management agreement pursuant to which any third party manages or operates any of the REIT III Properties on behalf of REIT III or any REIT III Subsidiary, and describes the property that is subject to such management agreement, REIT III or the applicable REIT III Subsidiary that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on REIT III or the applicable REIT III Subsidiary and relating thereto (collectively, the “REIT III Management Agreement Documents”). The true, correct and complete copies of all REIT III Management Agreement Documents have been made available to REIT II. Each REIT III Management Agreement Document is valid, binding and in breach full force and effect as against REIT III or default under any Company Contract northe applicable REIT III Subsidiary and, to the knowledge Knowledge of REIT III, as against the Company, is any other party thereto. Neither REIT III nor any REIT III Subsidiary owes any termination, cancellation or other similar fees or any liquidated damages to any such Company Contract in breach third party manager or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentoperator.
Appears in 2 contracts
Sources: Merger Agreement (Resource Real Estate Opportunity REIT II, Inc.), Merger Agreement (Resource Apartment REIT III, Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 3.16 of the Company Seller Disclosure Letter Schedule sets forth a true and complete listlist of all Contracts that are Assets or under which there is an Assumed Liability, as in each case under which any party thereto has continuing Liabilities or rights, with respect to any of the date of this Agreementfollowing (each, of:a “Material Contract”):
(i) each contract (other than this AgreementA) that involves a pending any Contract containing any covenant (1) prohibiting or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires limiting the Company right of Parent or any of its Subsidiaries Affiliates to dispose engage in any line of business or acquire assets to compete with any Person in any line of business or properties in any market or geographic location, or (2) prohibiting Parent or any of its Affiliates from engaging in business with any Person or levying a fair market value in excess fine, charge or other payment for doing so, or (B) any Contract otherwise qualifying as a Material Contract granting to any Person a right of $25,000,000first refusal, right of first offer, “most favored nation” or similar arrangement;
(ii) each contract that grants any right of first refusal Contracts for the acquisition or right of first offer or that limits the ability of the Company, any Subsidiary of the Company disposition by Parent or any of their respective its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businessesownership interest in any other Person or other business enterprise (A) since November 1, securities 2014 for consideration with an aggregate value of $1,000,000 or assets more or (other than provisions requiring notice B) pursuant to which Parent or any of its Affiliates is subject to any continuing deferred purchase price, “earn out”, purchase price adjustment or consent to assignment by any counterparty thereto)non-competition payment obligations;
(iii) each contract relating all Contracts related to outstanding the incurrence of Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000), other than agreements solely among accounts receivables and payables in the Company and its wholly owned Subsidiariesordinary course of business consistent with past practice;
(iv) any Contract that grants to any third party an Encumbrance, other than contracts entered into a Permitted Encumbrance, on all or any part of any material Assets;
(v) all Contracts with Material Customers or Material Suppliers;
(vi) any material Contract relating to any (A) material Business Intellectual Property or IT Assets that are Purchased Assets or (B) material Intellectual Property or IT Assets used primarily in the Business and licensed to Parent or its Affiliates from a third party, other than in the case of clauses (A) or (B) off-the-shelf software with annual fees of less than $500,000;
(vii) all Contracts other than purchase orders made in the ordinary course of businessbusiness involving the expenditure, each contract under which the Company payment or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company receipt by Parent or any of its Subsidiaries;
Affiliates attributable to the Business during 2016 or expected in 2017 (viicalculated using the average expenditure, payment or receipt per month during the 2017 year to date multiplied by twelve (12)) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts more than $2,000,000 in the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaaggregate;
(viii) each partnership, Contracts relating to any joint venture, limited liability company partnership or strategic alliance similar arrangement of Parent or any of its Affiliates, including any agreement to which the Company share profits or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)losses;
(ix) each contract between any Contract involving a resolution or among the Company settlement of any actual or any Subsidiary of the Company, on the one hand, and the Company Manager threatened Action with either a value greater than $1,000,000 or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handmaterial ongoing requirements;
(x) each contract that obligates the Company any obligation, such as a put or similar right, pursuant to which Parent or any of its Subsidiaries Affiliates could be required to indemnify any past or present directorspurchase, officersredeem, or employees otherwise acquire an equity securities of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitoranother Person;
(xi) each vendorany obligation to make any investment in (in the form of a loan, supplier capital contribution or consulting otherwise, other than with respect to trade accounts receivable in the ordinary course of business consistent with past practice), or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant provide any guarantee with respect to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or obligations of, any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andthird party;
(xii) each “material contract” (as such term is defined in Item 601(b)(10) any Contract for the provision of Regulation S-K under services involving third party contractor personnel previously employed by Parent, its Affiliate or its or their predecessor pursuant to which Parent or its Affiliates has agreed to indemnify the Exchange Act) not otherwise described in this Section 4.16(a) with respect counterparty for costs related to the Company or termination of such personnel; or
(xiii) any Subsidiary Contract required to be disclosed on Section 3.24 of the CompanySeller Disclosure Schedule.
(b) CollectivelyTrue and complete copies of all Material Contracts (other than immaterial amendments, supplements, exhibits or schedules thereto) have been made available to Buyer prior to the contracts set forth Agreement Date. All of the Material Contracts are valid and binding on each party thereto and are in Schedule 4.16(afull force and effect in accordance with their terms, except to the extent they have previously expired or terminated in accordance with their terms and except with respect to Contracts listed on Section 3.16(a)(xii) of the Company Seller Disclosure Letter Schedule that are herein referred terminated prior to as the “Company Contracts.” Except as would not reasonably be expected Closing pursuant to have, individually Section 5.06. None of Parent or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each any of its Subsidiaries that Affiliates is a party thereto (with or without notice or lapse of time, or both) in material violation of or material default under any Material Contract, and, to the knowledge Knowledge of the CompanyParent and Sellers, each other party thereto, and there is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually no existing or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach claimed material violation or material default under any Company Contract nor, to the knowledge of the Company, is by any other party to any such Company Contract in breach Material Contract. None of Parent or default thereunder. Complete and accurate copies any of each Company Contract in effect as its Affiliates has received any written notice of the date hereof (including all amendments and modifications) have been furnished to any actual or otherwise made available to Parentthreatened termination, cancellation or limitation of any Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Owens & Minor Inc/Va/), Purchase Agreement (Halyard Health, Inc.)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement, the Company Disclosure Letter sets forth a true Benefit Plans and complete listany agreements filed as exhibits to the Company SEC Documents, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries (or, to the knowledge of the Company, any of the Significant JV Entities) is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described any Contract that (A) imposes or purports to impose, any material restriction or prohibition on the right, ability, manner or locations of the Company, any of its Subsidiaries or any Significant JV Entity to compete with any other person or acquire or dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company, its Subsidiaries or any Significant JV Entity in this Section 4.16(aa material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness or other financing or capital lease of the Company, its Subsidiaries or any Significant JV Entity in an amount in excess of $25 million;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(v) any Contract obligating the Company and/or its Subsidiaries to incur annual capital expenditures in excess of $50 million;
(vi) any Contract expressly limiting or restricting the ability of the Company, any of its Subsidiaries or any Significant JV Entity to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company, any of its Subsidiaries or any Significant JV Entity in excess of $100 million;
(viii) any Labor Agreement;
(ix) any Contract that is a settlement, conciliation or similar agreement with respect any Governmental Entity in excess of $10 million;
(x) each Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, businesses, equity interests, rights requiring annual payments by the Company, its Subsidiaries or the Significant JV Entities in excess of $50 million, in each case other than Company Midstream Contracts;
(xi) each Contract that provides for the purchase or sale by Company or any of its Subsidiaries of hydrocarbons, produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending, disposal or similar midstream services (including hydrocarbon or water gathering, processing, treating, handling, disposal, recycling, redelivery, balancing, purchase, sale, fractionation, transportation, interconnection or similar agreements) for which the material firm service or capacity terms provide for, in each case, annual payments after the date hereof by the Company or any of its Subsidiaries in excess of $50 million, or annual revenues after the date hereof to the Company or any Subsidiary of the Company.
its Subsidiaries in excess of $20 million (b) Collectivelycollectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Midstream Contracts.” Except as would not reasonably be expected ”); and
(xii) any material lease or sublease with respect to havea Company Leased Real Property, individually or other than capacity leases and storage leases, in each case, entered into in the aggregateordinary course of business and that during the twelve months ended December 31, a Company Material Adverse Effect2023 individually required, each Company Contract or is legalreasonably expected in the future to require, valid, binding and enforceable in accordance with its terms on annual revenues or payments by the Company and each of its Subsidiaries that is a party thereto and, to the knowledge in excess of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent$25 million.
Appears in 2 contracts
Sources: Merger Agreement (EQT Corp), Merger Agreement (Equitrans Midstream Corp)
Material Contracts. (a) Schedule 4.16(a) of Neither the Company Disclosure Letter sets forth a true and complete list, as nor any of the date of this Agreement, ofits Subsidiaries is party to or bound by any:
(i) each contract (other than this Agreement) Contracts that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires would be required to be filed by the Company or any as a “material contract” pursuant to Item 601(b)(10) of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000Regulation S-K under the Securities Act;
(ii) each contract Contracts relating to any partnership, strategic alliance or joint venture that grants any right of first refusal is material to the Company and its Subsidiaries, taken as a whole;
(iii) Contracts pursuant to which the Company or right of first offer or that limits the ability of the Company, any Subsidiary of the Company (A) has any material continuing “earn-out” or other material contingent payment obligations or (B) has any of their respective Affiliates to ownmaterial indemnification obligations that, operatein either case, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts were not entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(viv) each contract Contracts that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of (i) limit in any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts respect the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete with or to provide services in any line of business or with any Person or in any geographic area;
area or market segment or (viiiii) each partnershipprovide any standstill, joint venture“most favored nation” provision or equivalent preferential pricing terms, limited liability company exclusivity or strategic alliance agreement similar obligations to which the Company or any of its Subsidiaries is subject or a Subsidiary beneficiary thereof, which, in the case of the Company clauses (i) and (ii), is a party (other than any such agreement solely between or among material to the Company and its wholly owned Subsidiaries)Subsidiaries taken as a whole;
(ixv) each contract between Contracts that are material Collective Bargaining Agreements;
(vi) Contracts with (A) any beneficial owner (as defined in Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of 5% or among more of any class of securities of the Company or any Company Subsidiary or (B) any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any of the foregoing, including any shareholders agreement, investors’ rights agreement, registration rights agreement, tax receivables agreement (other than the Tax Receivable Agreement) or similar or related Contracts;
(vii) Contracts that (A) are a material indenture, loan or credit Contract, loan note, mortgage Contract, letter of credit or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the CompanyCompany in excess of $5,000,000, on the one hand, and (B) is a guarantee by the Company Manager or any officer, director Subsidiary of the Company of any indebtedness for borrowed money or Affiliate (similar obligation of any Person other than the Company or a wholly wholly-owned Subsidiary of the CompanyCompany or (C) that become due and payable as a result of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;transactions contemplated hereby; or
(xviii) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries Contracts pursuant to which the Company or any of its Subsidiaries (i) obtain the right to use, or a covenant not to be sued under, any Intellectual Property (other than non-exclusive licenses for commercially available off-the-shelf software that is generally available for an annual cost of less than $100,000) or (ii) grants the indemnitor;
right to use, or a covenant not to be sued under, Intellectual Property, in the case of each of clauses (xii) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it ii), that is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyand its Subsidiaries, taken as a whole.
(b) Collectively, The Company has made available to Parent prior to the contracts set forth date hereof a complete and correct copy of each Contract listed or required to be listed in Schedule 4.16(aSection 5.20(a) of the Company Disclosure Letter are herein referred to as the Schedule (each, a “Company Contracts.” Material Contract”). Except as for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract of the Material Contracts is legal, valid, binding and enforceable in accordance with its terms on full force and effect and (ii) neither the Company and each nor any of its Subsidiaries that is a party thereto andSubsidiaries, nor to the knowledge Knowledge of the Company, each any other party theretoto a Material Contract, has breached or violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Material Contract, and is in full force and effectsince January 1, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect2015, neither the Company nor any of its Subsidiaries is in breach has received notice that it has breached, violated or default defaulted under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)
Material Contracts. (a) Schedule 4.16(a) Except as disclosed in Section 2.9 of the Company Seller Disclosure Letter sets forth a true and complete listLetter, as of the date of this Agreement, ofneither Target nor any of its Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract agreement relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset);
(ii) in excess any joint venture, partnership, limited liability company or other similar agreements or arrangements;
(iii) any agreement or series of $15,000,000related agreements, including any option agreement, relating to the acquisition or disposition of any business, capital stock or material assets of any other than agreements solely among the Company and its wholly owned SubsidiariesPerson or any material real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) other than contracts entered into in any agreement that (A) limits the ordinary course freedom of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company Target or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areain any area or that would so limit the freedom of Buyer or its Subsidiaries after the Closing or (B) contains exclusivity obligations or restrictions binding on Target or any of its Subsidiaries or that would be binding on Buyer or any of its Subsidiaries after the Closing;
(v) agreements with any of the top ten (10) suppliers of materials, supplies, goods, services, equipment or other assets for Target and its Subsidiaries taken as a whole as determined as of the date hereof based on aggregate purchases made during the twelve-month period ending on Target Balance Sheet Date (other than any work orders or purchase orders that are governed by any of such agreements);
(vi) agreements with any of the top ten (10) customers of Target and its Subsidiaries taken as a whole as determined as of the date hereof based on aggregate purchases made during the twelve-month period ending on Target Balance Sheet Date (other than any work orders or purchase orders that are governed by any of such agreements);
(vii) any agreement relating to any interest rate, derivatives or hedging transaction;
(viii) any agreement under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of Target or any of its Subsidiaries or (B) Target or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (in each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (case other than any such agreement solely between or among endorsements for the Company and its wholly owned Subsidiariespurpose of collection in the ordinary course of business);
(ix) each contract between any agreement that includes a take-or-pay, guaranteed minimum purchase or among the Company supply or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handsimilar term;
(x) each contract that obligates the Company any engineering, production and construction agreement or similar agreement related to any downstream solar projects with generation capacity of its Subsidiaries to indemnify any past five (5) megawatts or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;more; or
(xi) each vendorany other agreement, supplier commitment, arrangement or consulting or similar contract not otherwise described in this Section 4.16(a) plan that is (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after made in the Effective Time ordinary course of business and (B) under which it is reasonably expected the Company or any of material to Target and its Subsidiaries will be required to pay feesSubsidiaries, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (taken as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companya whole.
(b) CollectivelyEach agreement, commitment, arrangement or plan disclosed in the contracts set forth in Schedule 4.16(a) of the Company Seller Disclosure Letter are herein referred or required to be disclosed therein pursuant to this Section 2.9, Section 2.10(c), Section 2.11(b), Section 2.13(b), Section 2.17 or Section 2.20(a) (each, a “Target Material Contract”) is a valid and binding agreement of Target or a Subsidiary of Target, as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party theretocase may be, and is in full force and effect, subjectand none of Target, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Subsidiary of its Subsidiaries is in breach or default under any Company Contract norTarget or, to the knowledge Knowledge of the CompanySeller, is any other party thereto is in default or breach in any material respect under (or is alleged to be in default or breach in any material respect under) the terms of, or has provided or received any notice of any intention to terminate, any such Target Material Contract, and, to the Knowledge of Seller, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default thereunder or result in a termination thereof or would cause or permit the acceleration of or other changes of or to any such Company Contract in breach right or default obligation or the loss of any benefit thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Share Purchase Agreement (Hanwha SolarOne Co., Ltd.), Share Purchase Agreement (Hanwha Solar Holdings Co., Ltd.)
Material Contracts. (a) Section 4.18 of the Company Disclosure Schedule 4.16(asets forth a complete and accurate list of all Company Contracts (other than contracts, undertakings, commitments or agreements for employee benefit matters set forth in Section 4.13 of the Company Disclosure Schedule and real property leases set forth in Section 4.20(i) of the Company Disclosure Letter sets forth a true and complete list, as Schedule) of the date following categories (collectively, and together with the contracts, undertakings, commitments or agreements for employee benefit matters set forth in Section 4.13 of this Agreementthe Company Disclosure Schedule and the real property leases set forth in Section 4.20(ii) of the Company Disclosure Schedule, of:the “Material Contracts” and each a “Material Contract”):
(i) each contract (other than this Agreement) that involves a pending Company Contracts requiring annual expenditures by or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or liabilities of any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value party thereto in excess of $25,000,0002,500,000 which have a remaining term in excess of ninety (90) days or are not cancelable (without material penalty, cost or other liability) within ninety (90) days;
(ii) each contract that grants any right of first refusal or right of first offer or that limits Company Contracts containing covenants limiting the ability of the Company, any Subsidiary freedom of the Company or any Company Subsidiary or other Affiliate of their respective the Company (including Parent and its Affiliates after the Effective Time) to ownengage in any line of business or compete with any Person, operatein any product line or line of business, sell, transfer, pledge or otherwise dispose of operate at any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)location;
(iii) each contract relating to outstanding Indebtedness promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments and contracts providing for the borrowing or lending of money, in an amount in excess of $1,000,000, whether as borrower, lender or guarantor;
(iv) joint venture, alliance or commitments partnership agreements or guarantees joint development or similar agreements with any Third Party;
(v) all material licenses, sublicenses, consent, royalty or other agreements concerning Intellectual Property;
(vi) (A) employment contracts and other contracts with current or former officers, directors, consultants, independent contractors or agents and (B) all severance, change in respect thereofcontrol or similar arrangements with any current or former directors, officers, employees, consultants, independent contractors or agents that, in the case of either (A) or (B), will result in any obligation (absolute or contingent) of the Company or any Company Subsidiary to make any payment to any current or former directors, officers, employees, consultants, independent contractors or agents as a result of its Subsidiaries either the consummation of the transactions contemplated hereby, termination of employment (or the relevant relationship), or both;
(vii) Company Contracts with Affiliates of the Company;
(viii) Company Contracts with any Governmental Entity which have a remaining term in excess of one year or are not cancelable (without material cost, penalty or other liability) within one hundred eighty (180) days; or
(ix) Company Contracts pending for the acquisition or sale, directly or indirectly (by merger or otherwise), of assets (whether incurred, assumed, guaranteed tangible or secured by any assetintangible) in excess of $15,000,0001,500,000 in market or book value with respect to any contract or the capital stock of another Person, other than agreements solely among the Company and its wholly owned Subsidiaries;in each case in an amount in excess of $1,500,000.
(ivb) other than contracts entered into in True and complete copies of the ordinary course written Material Contracts and descriptions of businessverbal Material Contracts, each contract under which if any, have been delivered or made available to the Company or Acquiror. Each of the Material Contracts is a Subsidiary valid and binding obligation of the Company hasand, directly to the Company’s Knowledge, the other parties thereto, enforceable against the other parties thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, arrangement or indirectly, made any advance, loan, extension similar laws affecting creditors’ rights generally and by general principles of credit or capital contribution to, or other investment in, any Person (other than equity. Except for the Company or a Subsidiary consummation of the Company);
(v) each contract that involves transactions contemplated hereby, no event has occurred which would, on notice or constitutes an interest rate caplapse of time or both, interest rate collar, interest rate swap or other contract or agreement relating entitle the holder of any indebtedness issued pursuant to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary Material Contract identified on Schedule 4.18 of the Company is Disclosure Schedule in response to paragraph (a)(iii) above to accelerate, or which does accelerate, the maturity of any such indebtedness.
(c) Neither the Company nor any Company Subsidiary is, or has received any notice that any other party is, in breach, default or violation (each a party other than at-will arrangements that can be terminated at any time without material liability “Default”) (and no event has occurred or not occurred through the Company’s or the Company Subsidiary’s inaction or, to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary Knowledge of the Company, on through the one handaction or inaction of any Third Parties, and which with notice or the Company Manager lapse of time or any officer, director or Affiliate (other than both would constitute a wholly owned Subsidiary of the CompanyDefault) of the Company any term, condition or provision of any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant Material Contract to which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company them or any of its Subsidiaries will their respective properties or assets may be required to pay feesbound, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) except for Defaults which have not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectivelyhad, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on .
(d) Neither the Company and each nor any Company Subsidiary is in conflict with, or in Default of its Subsidiaries that is a party thereto andany Company Contract, except to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would extent that any such conflict or Default does not reasonably be expected to have, individually or in the aggregate, constitute a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Hollywood Entertainment Corp), Merger Agreement (Movie Gallery Inc)
Material Contracts. (a) Schedule 4.16(aExcept for contracts listed in Section 4.18(a) of the Company Disclosure Letter sets forth a true and complete listLetter, this Agreement, any Company Benefit Plan or contracts filed as exhibits to the Company SEC Documents, as of the date of this Agreement, ofneither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires is required to be filed as an exhibit to the Company SEC Documents pursuant to Item 601(b)(2), (4), (9) or any (10) of its Subsidiaries to dispose Regulation S-K promulgated under the Securities Act (but for the avoidance of or acquire assets or properties with a fair market value in excess of $25,000,000doubt, no Company Benefit Plan);
(ii) each contract obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within ninety (90) days without material penalty to the Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that grants restricts or limits in any right of first refusal or right of first offer or that limits material respect the ability of the Company, any Subsidiary business of the Company or any Company Subsidiary (or, that, following the Closing, would so restrict or limit in any respect Parent or any of their respective Affiliates to ownits Affiliates), operateor that otherwise restricts or limits, sellin each case, transferin any material respect, pledge the lines of business conducted by the Company or otherwise dispose any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business (or, that, following the Closing, would so restrict or limit in any respect Parent or any of any businessesits Affiliates), securities or assets (other than any ground lease or exclusive lease provisions requiring notice and other similar leasing restrictions entered into by the Company and the Company Subsidiaries in the ordinary course of or consent to assignment by any counterparty thereto)business;
(iiiiv) each contract relating is an agreement that obligates the Company or any Company Subsidiary to outstanding Indebtedness (indemnify any past or commitments or guarantees in respect thereof) present directors, officers, trustees, employees and agents of the Company or any of its Subsidiaries Company Subsidiary pursuant to which the Company or a Company Subsidiary is the indemnitor (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than the Company Charter and Company Bylaws and the organizational documents of the Company Subsidiaries);
(v) constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount as of the date hereof greater than $1,000,000 other than (x) any contract in respect of a ground lease or retail leases or obligations thereunder, (y) surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business in each case to the extent not drawn upon and (z) any contract solely among or between the Company and its wholly owned Subsidiaries;
(ivvi) (A) is an agreement entered into on or after January 1, 2021 for the disposition or the acquisition of assets or real properties (other than contracts entered into in connection with the ordinary course expiration of businessa Company Lease or a ground lease affecting any Company Property or for which there are no ongoing obligations) with a fair market value in excess of $1,500,000, each contract under which (B) involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Company Lease or any ground lease affecting any Company Property or (C) is an agreement for the acquisition, disposition, assignment, transfer or ground leasing (whether by merger, purchase or sale of assets or otherwise) of assets or real properties that contains any material ongoing obligations binding on the Company or a Subsidiary of the any Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)Subsidiary;
(vvii) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap hedging or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposesderivative transaction;
(viviii) each employment contract is a partnership, joint venture, strategic alliance, co-investment or similar agreement with any third party or that amends, supplements or modifies the parties’ rights under any such agreement;
(ix) constitutes a loan to which any Person (other than a wholly owned Company Subsidiary) by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Subsidiary Company Lease with respect to the development, construction, or equipping of Company Properties or the funding of improvements to Company Properties) in an amount in excess of $500,000 individually or $2,500,000 in the aggregate;
(x) grants to any Person a right of first refusal or a right of first offer, in each case, to purchase, acquire, sell or dispose of any Company Property that has a fair market value of greater than $1,000,000 or (ii) grants to any Person an option to purchase, acquire, sell or dispose of any Company Property that is material to the Company, except in each case as set forth in Company Leases provided to Parent prior to the date hereof; or
(xi) evidences (i) a capital expenditure in excess of $750,000, excluding any payment obligation budgeted for in the Company’s 2023 budget or in the budgets of the Company is a party Joint Ventures in accordance with the organizational documents thereof or (ii) any Lien (other than at-will arrangements that can be terminated at a Company Permitted Lien) on any time without material liability to asset or property of the Company or any of its Subsidiaries;.
(viib) each Each contract containing in any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactionscategories set forth in Section 4.18(a) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries Company Subsidiary is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected the bound is referred to herein as a “Company or any Material Contract”. The Company has made available to Parent correct and complete copies of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (all Company Material Contracts as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companydate of this Agreement (including all material amendments or supplements thereto).
(bc) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the Knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of the Company or any Company Subsidiary, nor, to the Knowledge of the Company, any other party thereto, is in breach or violation of, or default under, any Company Material Contract, and no event has occurred that, with notice or lapse of time or both, would constitute a violation or breach of, or default under, any Company Material Contract, except where in each case such breach, violation or default would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There are no disputes pending or, to the Company’s Knowledge, threatened in writing with respect to any Company Material Contract, and neither the Company nor any Company Subsidiary has received notice in writing of its Subsidiaries is in breach any violation of or default or termination under any Company Contract norMaterial Contract, in each case except as would not, individually or in the aggregate, reasonably be expected to the knowledge of the Company, is any other party to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Kimco Realty Corp), Merger Agreement (RPT Realty)
Material Contracts. (a) Schedule 4.16(aAll Contracts, including amendments thereto, required to be filed with the SEC as an exhibit to any Company SEC Documents filed on or after January 1, 2021 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts, to the extent publicly available, shall be deemed to have been made available to Parent.
(b) In addition to the Contracts described in Section 4.12(a), the Company Disclosure Letter sets forth has made available to Parent a true true, correct and complete list, copy of each Contract (other than a Company Benefit Plan) in effect as of the date hereof to which any of this Agreement, ofthe Acquired Companies is a party or by which any of its properties or assets are bound that:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act);
(ii) not is required to be described pursuant to Item 404 of Regulation S-K promulgated under the Securities Act or is otherwise described in this Section 4.16(aa Company Related-Party Agreement;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Acquired Companies or their Affiliates, or that otherwise restricts the lines of business conducted by the Acquired Companies or their Affiliates or the geographic area in which the Acquired Companies or their Affiliates may conduct business, in each case, including upon consummation of the transactions contemplated by this Agreement;
(iv) constitutes an Indebtedness obligation of the Acquired Companies with a principal amount as of the date hereof greater than $5,000,000 or relating to any interest rate caps, interest rate collars or hedging (including interest rates, currency, commodities or derivatives);
(v) requires the Acquired Companies to make any investment (in the form of a loan, capital contribution, preferred equity investment or preferred equity investment or similar transaction) in, or purchase or sell, as applicable, equity interests of, any Person or assets, including through a pending purchase or sale of assets, merger, consolidation or similar business combination transaction, that (together with all of the interests, assets and properties subject to such requirement in such Contract) have a fair market value or purchase price in excess of $1,500,000;
(vi) evidences a loan to any Person (other than a Wholly Owned Company Subsidiary) by any of the Acquired Companies in an amount in excess of $1,000,000;
(vii) relates to any joint venture, partnership, limited liability company or strategic alliance of any of the Acquired Companies with a third party;
(viii) provides for a right of any Person (other than the Acquired Companies) to receive fees or receive a profits interest in, invest, join or partner in (whether characterized as a contingent fee, profits interest, equity interest or otherwise), or have the right (a “Participation Interest”) to any of the foregoing in any proposed or anticipated investment opportunity, joint venture or partnership with respect to any current or future real property in which Acquired Company has or will have a material interest, including those transactions or properties identified, sourced, produced or developed by such Person (such Contracts, collectively, the “Participation Agreements”);
(ix) contains covenants expressly limiting, in any material respect, the ability of the Acquired Companies to sell, transfer, pledge or otherwise dispose of any material assets or business of the Acquired Companies;
(x) relates to the settlement (or proposed settlement) of any pending or threatened Action, in writing, other than any settlement that is fully covered by insurance or indemnification (which is reasonably expected to be received), or provides solely for the payment in cash of less than $2,000,000;
(xi) is (A) a Ground Lease Document, (B) a Material Space Lease, (C) an Educational Institution Property Agreement or (D) a Construction Contract;
(xii) expressly obligates the Acquired Companies to conduct business with any third party on a preferential or exclusive basis or that contain most favored nation provisions;
(xiii) grants any buy/sell, put option, call option, redemption right, option to purchase, a marketing right, a forced sale, tag or drag right or a right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which any Acquired Company could be required to purchase or sell the applicable equity interests of any Person or any Subsidiary real property or any other material assets, rights or properties of the Company.Acquired Companies or any Minority Equity Joint Ventures (any of the foregoing, a “Transfer Right”);
(bxiv) Collectivelyprovides for the acquisition, disposition, assignment, transfer or ground leasing (whether by merger, purchase or sale of assets or stock or otherwise) of any real property (including any Company Property or Minority JV Real Property to the contracts set forth extent such Contract was executed on or after January 1, 2019), which Contract is pending or has outstanding obligations as of the date of this Agreement that are reasonably likely to be in excess of $3,000,000;
(xv) pursuant to which any Acquired Company manages, is a development manager of, or the leasing agent of any real properties of a third party under which the aggregate annual payments or other consideration to any of the Acquired Companies thereunder is more than $500,000; or
(xvi) except to the extent such Contract is described in the clauses above or on Schedule 4.16(a) 4.20 of the Company Disclosure Letter are herein Schedule or is a Company Benefit Plan, calls for (i) aggregate payments by, or other consideration from, any of the Acquired Companies of more than $10,000,000 over the remaining term of such Contract or (ii) annual aggregate payments by, or other consideration from, any of the Acquired Companies of more than $5,000,000.
(c) Each Contract in any of the categories set forth in Section 4.12(a), (b) and (e) to which any of the Acquired Companies is a party or by which it is bound as of the date hereof is referred to herein as a “Material Contract”, and as set forth on Schedule 4.12 of the “Company ContractsDisclosure Letter.”
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the each Acquired Company and each of its Subsidiaries that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). None of the Acquired Companies nor, to Creditors’ Rightsthe Knowledge of the Company, any other party thereto, is in breach or violation of, or default under, any Material Contract, and no event or condition has occurred that, with notice or lapse of time or both, would constitute a violation, breach or default under any Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Except None of the Acquired Companies has received written notice of any violation or default under, or owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any Material Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. There are no disputes pending or, to the Knowledge of the Company, threatened with respect to any Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Material Contract to terminate for default, convenience or otherwise any Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither .
(e) No Person other than an Acquired Company manages or operates any of the Company nor Properties or Minority JV Real Property on behalf of any of its Subsidiaries is in breach Acquired Company or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMinority Equity Joint Venture.
Appears in 2 contracts
Sources: Merger Agreement (American Campus Communities Inc), Merger Agreement (American Campus Communities Inc)
Material Contracts. (a) Schedule 4.16(a) Section 3.16 of the Company Disclosure Letter Schedule sets forth a true list of all Company Material Contracts (as hereinafter defined). The Company has heretofore made available to Parent correct and complete listcopies of all material written contracts and agreements (and all amendments, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries subsidiaries is a party affecting the obligations of any party thereunder) to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of which the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge its subsidiaries is a party or otherwise dispose by which any of any businesses, securities its properties or assets are bound, including all: (other than provisions requiring notice of i) (A) employment, severance, change in control, termination, labor, collective bargaining or consent to assignment by any counterparty theretoconsulting agreements (but excluding personal service contracts);
, (iiiB) each contract relating to outstanding Indebtedness non-competition contracts, and (or commitments or guarantees in respect thereofC) indemnification contracts with officers and directors of the Company or any of its Subsidiaries subsidiaries; (whether incurredii) partnership or joint venture agreements; (iii) agreements for the pending sale, assumedoption to sell, guaranteed right of first refusal, right of first offer or secured by any asset) other contractual right to sell, dispose of, or lease (in excess of $15,000,00010,000 square feet), other than agreements solely among by merger, purchase or sale of assets or stock or otherwise, (A) the Company Properties or any other real property or (B) except as in the usual, regular and its wholly owned Subsidiaries;
ordinary course of business consistent with past practice, any personal property; (iv) other than contracts entered into in the ordinary course loan or credit agreements, letters of businesscredit, each contract under which the Company or a Subsidiary of the Company hasbonds, directly or indirectlymortgages, made any advanceindentures, loan, extension of credit or capital contribution toguarantees, or other investment in, any Person (other than the Company agreements or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except instruments evidencing indebtedness for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to borrowed money by the Company or any of its Subsidiaries;
subsidiaries or any such agreement pursuant to which indebtedness for borrowed money may be incurred, or evidencing security for any of the foregoing; (viiv) each contract containing any non-competeagreements that purport to limit, exclusivity curtail or similar type of provision that materially restricts restrict the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) subsidiaries to compete in any geographic area or line of business or with any Person or geographic area;
(viii) each partnershipbusiness, joint ventureother than exclusive lease provisions, limited liability company or strategic alliance agreement to which non-compete provisions and other similar leasing restrictions entered into by the Company or a Subsidiary in the usual, regular and ordinary course of business consistent with past practice contained in the Company is a party (Space Leases and in other than any such agreement solely between or among recorded documents by which real property was conveyed by the Company and its wholly owned Subsidiaries);
to any user or to hire or solicit the hire for employment of any individual or group; (ixvi) each contract between contracts or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract agreements that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following be filed as an exhibit to the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation SForm 10-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to or Forms 10-Q filed by the Company or any Subsidiary of with the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.SEC since January 1,
Appears in 2 contracts
Sources: Merger Agreement (JDN Realty Corp), Merger Agreement (Developers Diversified Realty Corp)
Material Contracts. (a) Schedule 4.16(a) Except for this Agreement, the Company Benefit Plans or Contracts filed by the Company with the SEC as exhibits to its Annual Report on Form 10-K for the fiscal year ended December 31, 2005 or to subsequent Exchange Act reports filed prior to the date hereof, Section 3.21 of the Company Disclosure Letter sets forth a true and complete list, as all of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant following Contracts to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected bound (the “Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andMaterial Contracts”):
(xiii) each Contracts that are a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC) not otherwise described to the Company;
(ii) Contracts that contain any provision that prior to or following the Effective Time would by its terms materially restrict or alter the conduct of business of, or purport to materially restrict or alter the conduct of business of the Company or any of its Subsidiaries, Parent or, to the Company’s Knowledge, any Affiliate of Parent (other than any director, officer or employee of any of the Company or any of its Subsidiaries);
(iii) Contracts for partnerships, joint ventures or strategic alliances;
(iv) Contracts in this Section 4.16(aan amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) with respect per year (A) for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2004, other than in the ordinary course of business, (B) that grant to any Person any preferential rights to purchase any of its properties or assets or (C) relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital stock of any other Person;
(v) Loan or credit agreements, mortgages, indentures, notes or other Contracts or instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries;
(vi) Contracts relating to the license of material Company Intellectual Property to a third Person;
(vii) Mortgages, pledges, security agreements, deeds of trust or other Contracts granting a Lien on any material real property or any material property or assets of the Company or any of its Subsidiaries;
(viii) Company real property leases and all leases related to any material tangible personal property of the Company or any of its Subsidiaries;
(ix) Contracts, purchase agreements or other similar documents that obligate the Company or any of its Subsidiaries in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year or for which another Person is obligated to the Company or any Subsidiary of its Subsidiaries in excess of such amount;
(x) Collective bargaining agreements or other Contracts with any labor union and employment Contracts (other than for employment at-will or similar arrangements) that are not terminable by the Company without notice and without cost to the Company;
(xi) Contracts for indemnification or guarantees that are or could be material to the Company and its Subsidiaries, taken as a whole (in each case, under which the Company or any of its Subsidiaries has continuing obligations as of the date hereof);
(xii) Contracts that give any guarantee or warranty of products or services of the Company or its Subsidiaries, other than any warranty or guarantee implied by Law or consistent with those offered by the Company in the ordinary course of business; and
(xiii) Contracts that (A) grant any exclusive distribution agreement or supply agreement or other exclusive rights, (B) grant any “most favored nation” rights, rights of first refusal, rights of first negotiation or similar rights with respect to any product, or (C) contain any provision that requires the purchase of all or a given portion of the Company’s or any of its Subsidiaries’ requirements from a given third party, or any similar provision.
(bi) Collectively, the contracts set forth The Company has heretofore made available to Parent correct and complete copies of each Company Material Contract in Schedule 4.16(a) existence as of the Company Disclosure Letter are herein referred to as the date hereof, together with any and all amendments and supplements thereto and material “Company Contracts.side letters” Except as would not reasonably be expected to have, individually or in the aggregate, a and similar documentation relating thereto; (ii) each Company Material Adverse Effect, each Company Contract is legal, valid, binding and in full force and effect and is enforceable in all material respects in accordance with its terms on by the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, ; and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries is in breach default under, has received written notice of, or otherwise has Knowledge of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default under any Company Contract nor, to on the knowledge part of the Company, is Company or any other party to of its Subsidiaries under any such Company Contract Material Contract, except where such defaults would not, individually or in breach or default thereunder. Complete and accurate copies of each the aggregate, have a Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Material Contracts. (a) Schedule 4.16(a) Except for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 3.18 of the Company Disclosure Letter sets forth Schedules, neither the Company nor any of its Subsidiaries is a true party to or expressly bound by any Contract (excluding any Company Benefit Plan (other than with respect to clause (xiv) and complete list, as of the date of this Agreement, of(xv) below) or Lease) that:
(i) each contract (other than this Agreement) that involves would constitute a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Securities Act) not otherwise described in this Section 4.16(a) with respect to the Company and its Subsidiaries, taken as a whole;
(ii) contains restrictions on the right of the Company or any of its Subsidiaries to engage in activities competitive with any Person or to solicit suppliers anywhere in the world, other than restrictions that are not material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provides for the formation, creation, operation, management or control of any joint venture or partnership with a third party;
(iv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any of its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $10 million;
(v) is a settlement, conciliation or similar Contract that would require the Company or any of its Subsidiaries to pay consideration of more than $5 million after the date of this Agreement or that contains restrictions on the business and operations of the Company and its Subsidiaries that are material to the business of the Company and its Subsidiaries, taken as a whole;
(vi) (A) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise) with a value in excess of $50 million or (B) pursuant to which the Company or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, in each case, under which the Company or any of its Subsidiaries has obligations remaining to be performed as of the date hereof;
(vii) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $5 million;
(viii) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company;
(ix) has resulted in payments by the Company or any of its Subsidiaries of more than $5 million in the aggregate for the prior fiscal year (other than Contracts subject to clause (v) above);
(x) has resulted in payments to the Company or any of its Subsidiaries of more than $10 million in the aggregate for the prior fiscal year;
(xi) is a Collective Bargaining Agreement or similar agreement to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is bound;
(xii) is with (A) each of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest commercial vendors of the Company and its Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the fiscal year ending December 31, 2021;
(xiii) provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent or (B) accelerated vesting in connection with a change of control (including as a result of any termination of employment following a change of control);
(xiv) is a Contract that is for the employment or engagement of any directors, officers, employees or independent contractors of the Company or any of its Subsidiaries at annual base cash compensation in excess of $400,000;
(xv) (A) is between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any of its Subsidiaries or any Person beneficially owning five percent or more of the outstanding shares of the Company Common Stock, on the other hand, except for any Company Benefit Plan or (B) that would be required to be disclosed under Item 404 under Regulation S-K under the Securities Act; or
(xvi) (A) under which the Company or any of its Subsidiaries has granted or received an exclusive license to any Intellectual Property, (B) otherwise materially restricting the Company or any of its Subsidiaries’ ability to use, enforce, or disclose any Company Intellectual Property, (C) under which the Company or any of its Subsidiaries has the right to use any Intellectual Property licensed from a third Person that is material to the business of the Company and its Subsidiaries, taken as a whole, (D) under which the Company or any of its Subsidiaries has granted a right to any Company Intellectual Property, which grant is material to the business of the Company and its Subsidiaries, taken as a whole, or (E) under which the Company or any of its Subsidiaries has delivered, made available, licensed, or placed into escrow any source code owned by any of them that is material to the business of the Company and its Subsidiaries, taken as a whole, other than, with respect to each of (A) through (E), (1) non-disclosure agreements entered into in the ordinary course of business, (2) nonexclusive, “off-the-shelf” software licenses granted by third parties to the Company or any of its Subsidiaries, (3) Open Source Licenses, (4) maintenance and support and professional services Contracts with the Company or its Subsidiaries, (5) non-exclusive licenses to customers, resellers, or distributors in the ordinary course of business and (6) agreements with employees and contractors in the ordinary course of business. Each Contract of the type described in clauses (i) – (xvi) of this Section 3.18(a) is referred to herein as a “Company Material Contract.”
(b) Collectively, True and correct copies of each Company Material Contract have been publicly filed prior to the contracts set forth in Schedule 4.16(a) date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company Disclosure Letter are herein referred to as is in breach of or default under the “terms of any Company Contracts.” Except as Material Contract where such breach or default would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on . To the Company and each of its Subsidiaries that is a party thereto and, to the knowledge Knowledge of the Company, each as of the date of this Agreement, no other party thereto, and to any Company Material Contract is in full force and effectbreach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, subjectindividually or in the aggregate, as to enforceability, to Creditors’ Rightsa Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither as of the date of this Agreement, each Company Material Contract is a valid and binding obligation of the Company nor any or the Subsidiary of its Subsidiaries the Company that is in breach or default under any Company Contract norparty thereto and, to the knowledge Knowledge of the Company, is any of each other party thereto, and is in full force and effect, subject to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as the Enforceability Exceptions.
(c) To the Knowledge of the Company, since the date hereof of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material Customer indicating that such Material Customer intends to terminate or not renew, any Company Material Contract with such Material Customer.
(including all amendments and modificationsd) have been furnished To the Knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or otherwise made available on behalf of any Material Vendor indicating that such Material Vendor intends to Parentterminate, or not renew, any Company Material Contract with such Material Vendor.
Appears in 2 contracts
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Material Contracts. (a) Schedule 4.16(aExcept for contracts listed in Section 4.18(a) of the Company Disclosure Letter sets forth a true and complete listLetter, this Agreement or contracts filed as exhibits to the Company SEC Documents, as of the date of this Agreement, ofneither Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires is required to be filed as an exhibit to the Company SEC Documents pursuant to Item 601(b)(2), (4), (9) or any (10) of its Subsidiaries to dispose Regulation S-K promulgated under the Securities Act (but, for the avoidance of or acquire assets or properties with a fair market value in excess of $25,000,000doubt, no Company Benefit Plan);
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the obligates Company or any of their respective Affiliates Company Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets make non-contingent aggregate annual expenditures (other than provisions requiring notice principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $2,000,000 and is not cancelable within ninety (90) days without material penalty to Company or consent to assignment by any counterparty thereto)Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts or limits in any material respect the business of Company or any Company Subsidiary, or that otherwise restricts or limits, in each contract relating case, in any material respect, the lines of business conducted by Company or any Company Subsidiary or the geographic area in which Company or any Company Subsidiary may conduct business, other than any ground lease or exclusive lease provisions, non-compete provisions and other similar leasing restrictions entered into by the Company and its Subsidiaries in the ordinary course of business;
(iv) is an agreement that obligates Company or any Company Subsidiary to outstanding Indebtedness indemnify any past or present directors, officers, trustees, employees and agents of Company or any Company Subsidiary pursuant to which Company or a Company Subsidiary is the indemnitor (or commitments or guarantees in respect thereof) other than the Company Charter and Company Bylaws and the Organizational Documents of the Company Subsidiaries);
(v) constitutes an Indebtedness obligation of Company or any Company Subsidiary with a principal amount as of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of the date hereof greater than $15,000,000, 5,000,000 other than (x) surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business in each case to the extent not drawn upon and (y) any contract solely among or between the Company and its wholly owned Subsidiaries;
(ivvi) other than contracts entered into in the ordinary course of business, each contract under which the requires Company or a any Company Subsidiary to dispose of the Company has, directly or indirectly, made any advance, loan, extension of credit acquire assets or capital contribution to, or other investment in, any Person real properties (other than in connection with the expiration of a Company Lease or a Subsidiary ground lease affecting any Company Property) with a fair market value in excess of the Company)$5,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Company Lease or any ground lease affecting any Company Property;
(vvii) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areatransaction;
(viii) each partnership, sets forth the operational terms of a joint venture, partnership, limited liability company with a Company Third Party member or strategic alliance agreement to which the of Company or a Subsidiary of the any Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)Subsidiary;
(ix) each contract between or among the Company or constitutes a loan to any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate Person (other than a wholly owned Subsidiary of the CompanyCompany Subsidiary) of the by Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of its Subsidiaries Company Properties or any the funding of their respective “associates” or “immediate family” members (as such terms are defined improvements to Company Properties) in Rule 12b-2 and Rule 16a-1 an amount in excess of the Exchange Act) or of the Company Manager, on the other hand$2,000,000;
(x) each contract that obligates the constitutes an agreement under which Company or any a Company Subsidiary has purchased or sold real property and has uncompleted financial obligations in excess of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;$2,000,000; or
(xi) each vendorrequires payment of commissions (including leasing commissions on brokerage fees) or Tenant Improvement costs, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses allowances or other costs concessions in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company2,000,000.
(b) Collectively, Each contract in any of the contracts categories set forth in Schedule 4.16(aSection 4.18(a) of the to which Company Disclosure Letter are herein or any Company Subsidiary is a party or by which it is bound is referred to herein as the a “Company ContractsMaterial Contract.” ”
(c) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the Knowledge of Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of Company or any Company Subsidiary, nor, to the Knowledge of Company, any other party thereto, is in material breach or violation of, or default under, any Company Material Contract, and no event has occurred that, with notice or lapse of time or both, would constitute a violation or breach of, or default under, any Company Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, neither the . Neither Company nor any Company Subsidiary has received notice of its Subsidiaries is in breach any violation of or default under any Company Contract norMaterial Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to the knowledge of the Company, is any other party to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Kite Realty Group, L.P.), Merger Agreement (Retail Properties of America, Inc.)
Material Contracts. Section 2.24 of the Target Disclosure Schedule sets forth a list of all material agreements or commitments ("MATERIAL CONTRACTS") of any nature to which Target is a party or by which it is bound, including without limitation:
(a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that agreement which requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value future expenditures by Target in excess of $25,000,000;
(ii) each contract that grants 40,000 in any right of first refusal one case or right of first offer $80,000 in the aggregate or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates which might result in payments to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) Target in excess of $15,000,000, other than agreements solely among 40,000 in any one case or $80,000 in the Company and its wholly owned Subsidiariesaggregate;
(ivb) other than contracts entered into in the ordinary course of businessall employment and consulting agreements, each contract under which the Company or a Subsidiary of the Company hasemployee benefit, directly or indirectlybonus, made any advancepension, loanprofit-sharing, extension of credit or capital contribution tostock option, or other investment instock purchase and similar plans and arrangements, any Person (other than the Company or a Subsidiary of the Company)and distributor and sales representative agreements;
(vc) each contract that involves agreement with any 1% or constitutes an interest rate capgreater stockholder, interest rate collarofficer or director of Target, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any "affiliate" or "associate" of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members persons (as such terms are defined in Rule 12b-2 the rules and Rule 16a-1 regulations promulgated under the Securities Act), including without limitation any agreement or other arrangement providing for the furnishing of the Exchange Act) services by, rental of real or of the Company Managerpersonal property from, on the other handor otherwise requiring payments to, any such person or entity;
(xd) each contract that obligates any agreement between Target and a third party relating to Target Intellectual Property, other than non-exclusive licenses generally available from third parties;
(e) any agreement for the Company borrowing of money or line of credit, trust indenture, mortgage, promissory note, loan agreement or any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(f) agreements with respect to security interests, liens or pledges;
(g) any agreement not made in the ordinary course of Target's business;
(h) any agreement which provides for the restraint or restriction of Target's right to compete with any person in the conduct of its Subsidiaries business;
(i) any confidentiality, secrecy or non-disclosure agreement with any party with which Target has, has had or reasonably expects to indemnify have a significant relationship;
(j) any past distributor, reseller, agency or present directorsmanufacturer's representative contract;
(k) any contract to support or maintain Target's products, officersthat expires or may be renewed at the option of any person other than Target so as to expire more than one year after the date of this Agreement;
(l) any agreement of guarantee, support, assumption or endorsement of, or employees any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of the Company or any of its Subsidiaries other person;
(m) any agreement pursuant to which the Company Target has deposited or is required to deposit with an escrow holder or any other person or entity, all or part of its Subsidiaries is the indemnitor;
source code (xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any algorithm or documentation contained in or relating to any source code) of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Timeany Target Intellectual Property ("SOURCE MATERIALS"); and
(xiin) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) any agreement to indemnify, hold harmless or defend any other person with respect to any assertion of personal injury, damage to property or Intellectual Property infringement, misappropriation or violation or warranting the Company or any Subsidiary of the Company.
(b) Collectivelylack thereof, the contracts set forth other than indemnification provisions contained in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or a customary purchase orders/purchase agreements/product licenses arising in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each ordinary course of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentbusiness.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (I2 Technologies Inc), Agreement and Plan of Reorganization (I2 Technologies Inc)
Material Contracts. (ai) Schedule 4.16(aExcept as listed in Section 3.2(k) of the Company Kinderhook Disclosure Letter sets forth a true and complete listLetter, as of the date of this Agreement, of:
neither Kinderhook nor any of its Subsidiaries, nor any of their respective assets, businesses or operations, is a party to, or is bound or affected by, or receives benefits under, (iA) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires any Contract relating to the Company borrowing of money by Kinderhook or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment guarantee by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company Kinderhook or any of its Subsidiaries of any such obligation (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, Federal Home Loan Bank advances of Kinderhook Bank or Contracts pertaining to trade payables incurred in the ordinary course of businessbusiness consistent with past practice), each contract under which (B) any Contract containing covenants that limit the Company or a Subsidiary ability of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company Kinderhook or any of its Subsidiaries;
Affiliates (vii) each contract containing any non-competeincluding, exclusivity or similar type of provision that materially restricts after the ability of the Company Effective Time, Community or any of its Subsidiaries (including Parent upon consummation Affiliates) to engage in any line of the Transactions) business or to compete in any line of business or with any Person Person, or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary that involve any restriction of the Company is a party (other than any such agreement solely between geographic area in which, or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Companymethod by which, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company Kinderhook or any of its Subsidiaries or Affiliates (including, after the Effective Time, Community or any of their respective “associates” its Affiliates) may carry on its business, (C) any Contract or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 series of related Contracts for the Exchange Act) purchase of materials, supplies, goods, services, equipment or of the Company Manager, on the other hand;
assets that (x) each contract that obligates the Company provides for or is reasonably likely to require annual payments by Kinderhook or any of its Subsidiaries of $50,000 or more or (y) have a term exceeding twelve (12) months in duration (except those entered into in the ordinary course of business consistent with past practice with respect to indemnify Loans, lines of credit, letters of credit, depositor agreements, certificates of deposit and similar routine banking activities), (D) any past Contract between or present directors, officers, or employees of the Company among Kinderhook or any of its Subsidiaries or Affiliates, (E) any Contract involving Intellectual Property (excluding generally commercially available “off the shelf” software programs licensed pursuant to which “shrink wrap” or “click and accept” licenses), (F) any Contract relating to the Company provision of data processing, network communications or other technical services to or by Kinderhook or any of its Subsidiaries is Subsidiaries, (G) any Contract with respect to the indemnitor;
formation, creation, operation, management or control of a joint venture, partnership, limited liability company or other similar arrangement or agreement, (xiH) each vendorany Contract that provides any rights to investors in Kinderhook, supplier including registration, preemptive or consulting anti-dilution rights or similar contract not otherwise described in this Section 4.16(arights to designate members of or observers to the Kinderhook Board of Directors, (I) any Contract that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company provides for potential material indemnification payments by Kinderhook or any of its Subsidiaries will Subsidiaries, (J) any Contract or understanding with a labor union, in each case whether written or oral, (K) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Kinderhook or its Subsidiaries, (L) any Contract which is a merger agreement, asset purchase agreement, stock purchase agreement, deposit assumption agreement, loss sharing agreement or other commitment to a Governmental Authority in connection with the acquisition of a depository institution, or similar agreement that has indemnification earn-out or other obligations that continue in effect after the date of this Agreement or (M) any other Contract or amendment thereto that would be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” be filed as an exhibit to any SEC report (as such term is defined described in Item Items 601(b)(4) and 601(b)(10) of Regulation S-K under K) if Kinderhook were required to file such with the Exchange Act) not otherwise described in this Section 4.16(a) with SEC. With respect to each Contract described above: (w) the Company Contract is valid and binding on Kinderhook or any the applicable Subsidiary party thereto and, to the Knowledge of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectKinderhook, each Company Contract other party thereto and is legalin full force and effect, valid, binding and enforceable in accordance with its terms on (except in all cases as such enforceability may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship and other Laws now or hereafter in effect relating to or affecting the Company enforcement of creditors’ rights generally and (2) general equitable principles and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought); (x) neither Kinderhook nor any of its Subsidiaries is in Default thereunder; (y) neither Kinderhook nor any of its Subsidiaries has repudiated or waived any material provision of any such Contract; and (z) no other party to any such Contract is, to the Knowledge of Kinderhook, in Default in any material respect or has repudiated or waived any material provision of any such Contract. No Consent is required by any such Contract for the execution, delivery or performance of this Agreement or the Bank Merger Agreement or the consummation of the Merger or the Bank Merger or the other transactions contemplated hereby or thereby. All indebtedness for money borrowed of Kinderhook and its Subsidiaries is prepayable without penalty or premium.
(ii) All interest rate swaps, caps, floors, collars, option agreements, futures, and forward contracts, and other similar risk management arrangements, Contracts or agreements, whether entered into for Kinderhook’s own account or for the account of one or more of its Subsidiaries or their respective customers, were entered into (A) in the ordinary course of business consistent with past practice and in accordance with prudent business practices and all applicable Laws and (B) with counterparties believed to be financially responsible, and each of them is enforceable in accordance with its Subsidiaries terms (except in all cases as such enforceability may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship and other Laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally and (2) general equitable principles and except that the availability of the equitable remedy of specific performance or injunctive relief is a party thereto and, subject to the knowledge discretion of the Company, each other party theretocourt before which any proceeding may be brought), and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company Neither Kinderhook nor any of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, nor to the knowledge Knowledge of the CompanyKinderhook, is any other party to thereto, is in Default of any of its obligations under any such Company Contract in breach agreement or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentarrangement.
Appears in 2 contracts
Sources: Merger Agreement (Community Bank System, Inc.), Merger Agreement
Material Contracts. (a) Schedule 4.16(aExcept for this Agreement, the Company Benefit Plans, agreements filed as exhibits to the Company SEC Documents or as set forth on the applicable subsection of Section 3.18(a) of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date hereof, neither Company nor any of this Agreement, ofits Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described any Contract that (A) imposes any restriction on the right or ability of Company or any of its Subsidiaries to compete with any other person or in this Section 4.16(aany geographic area or acquire or dispose of the securities of another person, or (B) contains an exclusivity or other clause that restricts the operations of the business of Company and its Subsidiaries in a material manner;
(iii) any mortgage, credit agreement, note, debenture, indenture, security agreement, pledge, or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of Company or any of its Subsidiaries in an amount in excess of $5,000,000, except any transaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(iv) any executory Contract that provides for the acquisition or disposition of assets, rights or properties with a value in excess of $5,000,000, except any transaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(v) any material joint venture, partnership or limited liability company agreement or other similar material Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between Company and its Subsidiaries or among Company’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any Contract that obligates Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person other than (A) any loan or capital contribution to, or investment in, (x) Company or one of its Subsidiaries or (y) any person (other than an officer, director or employee of Company or any of its Subsidiaries unrelated to business travel and other business-related expenses in the ordinary course of business) that is less than $500,000 (with respect to capital contributions and investments) or $100,000 (with respect to loans) to such person, (B) extensions of credit to customers in the ordinary course of business and consistent with customary trade terms, or (C) advancement obligations under any indemnification agreement entered into by Company or any Subsidiary of the Company.its Subsidiaries;
(bviii) Collectively, the contracts set forth in Schedule 4.16(a) of the any Contract pursuant to which Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each any of its Subsidiaries made aggregate payments of more than $20,000,000 during the 12-month period ended December 31, 2019, except (x) for any such Contract that is a party thereto andmay be cancelled by Company or any of its Subsidiaries upon notice of 90 days or less or (y) for leases, subleases, licenses and occupancy agreements that relate to the knowledge Company Leased Real Property;
(ix) any Contract pursuant to which Company or any of its Subsidiaries generated annual revenues of more than $40,000,000 during the 12-month period ended December 31, 2019;
(x) any Contract that includes any affiliate of Company as a counterparty or third party beneficiary and that would be required to be disclosed under Item 404 of Regulation S-K of the CompanySEC;
(xi) any Contract that contains “earn out” or other contingent payment obligations, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not that are reasonably be expected to haveresult in payments after the date hereof by Company or any of its Subsidiaries in excess of $2,500,000;
(xii) any lease, individually sublease, license or in the aggregate, occupancy agreement with respect to a Company Material Adverse Effect, neither the Leased Real Property under which Company nor or any of its Subsidiaries is a lessee or sublessee and for which the annual base rental payments during the 12-month period ended December 31, 2019 exceeded $1,750,000, or by the terms of such lease or sublease, are reasonably expected to exceed $1,750,000 during the next 12 months; and
(xiii) any Contract relating to material Company Intellectual Property or a material Company IT Asset, excluding (A) non-exclusive licenses to commercially available software with annual expenditures of less than $1,000,000 or (B) non-exclusive rights granted to customers and others in breach or default under any Company Contract nor, to the knowledge ordinary course of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentbusiness.
Appears in 2 contracts
Sources: Transaction Agreement (Delphi Technologies PLC), Transaction Agreement (Borgwarner Inc)
Material Contracts. (a) Schedule 4.16(aExcept for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 3.23(a) of the Company Disclosure Letter sets forth a true and complete listSchedules, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (excluding any Company Benefit Plan) that:
(i) each contract (other than this Agreement) that involves would constitute a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) is a Company Real Property Lease pursuant to which the Company or any of its Subsidiaries leases real property that (A) has remaining rental obligations in excess of $50 million or (B) is integral to the operations of the business of the Company and its Subsidiaries, taken as a whole;
(iii) contains restrictions on the right of the Company or any of its Subsidiaries to engage in activities competitive with any Person or to solicit customers or suppliers anywhere in the world, other than restrictions (A) pursuant to limitations on the use by the Company or its Subsidiaries of rail lines set forth in the agreements conveying those lines or granting rights to operate them that do not, individually or in the aggregate, materially impair the Company’s operations in accordance with its current and future operating plan or (B) that are part of the terms and conditions of any “requirements” or similar agreement under which the Exchange ActCompany or any of its Subsidiaries has agreed to procure goods or services exclusively from any Person; or (C) that are not otherwise described material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) grants “most favored nation” status that, following the Mergers, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(v) provides for the formation, creation, operation, management or control of any material joint venture, material partnership or other similar material arrangement with a third party;
(vi) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $150 million;
(vii) is a settlement, conciliation or similar Contract that would require the Company or any of its Subsidiaries to pay consideration of more than $40 million after the date of this Section 4.16(aAgreement or that contains material restrictions on the business and operations of the Company or any of its Subsidiaries or materially disrupts the business of the Company or any of its Subsidiaries as currently conducted;
(viii) with respect (A) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise), or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the Company of future payments in excess of $100 million or (B) pursuant to which the Company or any of its Subsidiaries will acquire any interest, or will make an investment, in any other Person, other than another Subsidiary, of more than $100 million;
(ix) is an acquisition agreement that contains material “earn-out” or other material contingent payment obligations;
(x) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $75 million in any calendar year;
(xi) provides for the procurement of services or supplies from a Company Top Supplier by the Company or any of its Subsidiaries, or provides for sales to a Company Top Customer by the Company or any of its Subsidiaries;
(xii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(xiii) other than any sales and marketing Contracts entered into in the Ordinary Course of Business, is a Contract pursuant to which the Company or any of its Subsidiaries is a party, or is otherwise bound, and obligated to make or receive payments in excess of $100 million in any calendar year which Contract has a term of at least three (3) years from the later of the date hereof and the date of such Contract, and the contracting counterparty of which (A) is a Governmental Entity or (B) to the Knowledge of the Company, has entered into such Contract in its capacity as a prime contractor or other subcontractor of any Contract with a Governmental Entity and such Contract imposes upon the Company obligations or other liabilities due to such Governmental Entity; or
(xiv) is a Contract pursuant to which (A) the Company or any of its Subsidiaries is granted any license or other right with respect to Intellectual Property of another Person, where such Contract is material to the business of the Company or any of its Subsidiaries (other than non-exclusive licenses for commercially available software that have been granted on standardized, generally available terms); or (B) the Company or any of its Subsidiaries grants to another Person any material license or other material right with respect to any Company Intellectual Property (other than non-exclusive licenses or similar rights granted to (1) direct or indirect customers or resellers in connection with their use, sale or resale of the Company’s or its Subsidiaries’ goods or services, or (2) service providers in connection with their provision of services for or on behalf of the Company or any Company Subsidiaries). Each Contract of the type described in clauses (i) through (xiv) of this Section 3.23(a) is referred to herein as a “Company Material Contract.”
(b) CollectivelyTrue, correct and complete copies of each Company Material Contract have been publicly filed with the contracts set forth in Schedule 4.16(a) SEC prior to the date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company Disclosure Letter are herein referred is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to as have, individually or in the “aggregate, a Company Contracts.” Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is legal, valid, a valid and binding and enforceable in accordance with its terms on obligation of the Company and each or the Subsidiary of its Subsidiaries the Company that is a party thereto and, to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, subject to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentEnforceability Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Union Pacific Corp), Merger Agreement (Norfolk Southern Corp)
Material Contracts. (a) Schedule 4.16(a) Except for contracts listed in Section 5.12 of the Company Disclosure Letter sets forth a true and complete listor filed as exhibits to the Company SEC Filings, as of the date of this Agreement, ofneither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(ii) obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $125,000 and is not cancelable within sixty (60) days without material penalty to the Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business;
(iv) is an agreement which obligates the Company or any Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or Company Subsidiary is the indemnitor, other than any operating agreements or property management agreements or any similar agreement pursuant to which a Company Subsidiary that is not wholly owned, directly or indirectly, by the Company provides such an indemnification to any such directors, officers, trustees, employees or agents in connection with the indemnification by such non-wholly owned Company Subsidiary of the Company or another Company Subsidiary thereunder;
(v) constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount as of the date hereof greater than $125,000;
(vi) would prohibit or materially delay the consummation of the Offer or the Merger as contemplated by this Agreement;
(vii) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a fair market value in excess of $25,000,000Company Lease or a ground lease affecting a Company Property), or involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Company Lease or any ground lease affecting any Company Property;
(iiviii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposestransaction;
(viix) each employment contract to which sets forth the Company operational terms of a joint venture, partnership, limited liability company with a Third Party member or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability strategic alliance of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaCompany Subsidiary;
(viiix) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or is with a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);Governmental Authority; or
(ixxi) each contract between or among the Company or constitutes a loan to any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate Person (other than a wholly owned Subsidiary of the CompanyCompany Subsidiary) of by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction or equipping of its Subsidiaries Company Properties or any the funding of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or improvements to Company Properties). Each contract listed on Section 5.12 of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant Disclosure Letter to which the Company or any of its Subsidiaries Company Subsidiary is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (bound as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companydate hereof is referred to herein as a “Company Material Contract”.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Each Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). The Company and each Company Subsidiary has performed all obligations required to enforceabilitybe performed by it prior to the date hereof under each Company Material Contract and, to Creditors’ Rights. Except as would not reasonably the knowledge of the Company, each other party thereto has performed all obligations required to be expected to have, individually or in the aggregate, a performed by it under such Company Material Adverse Effect, neither Contract prior to the date hereof. None of the Company nor any of its Subsidiaries is in breach or default under any Company Contract Subsidiary, nor, to the knowledge of the Company, is any other party to thereto, is in material breach or violation of, or default under, any such Company Contract in Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default thereunderunder any Company Material Contract. Complete and accurate copies Neither the Company nor any Company Subsidiary has received notice of each any violation or default under any Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
Material Contracts. (a) Schedule 4.16(aSection 7.9(a) of the Company Clinigence Disclosure Letter sets forth Schedule provides a true and complete list, as list of each of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company following contracts to which Clinigence or any of its Subsidiaries is party other than this Agreement (collectively, the “Clinigence Material Contracts”):
(i) All leases for real property used by Clinigence or any of its Subsidiaries and all leases of personal property and any Contract affecting any right, title or interest in or to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000real property;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the CompanyAll Contracts with Persons who are Service Providers, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)and all Clinigence Plans;
(iii) each contract relating Any Contract involving financing or borrowing of money, or evidencing indebtedness; any liability for borrowed money; any letters of credit; any obligation for the deferred purchase price of property in excess of $25,000; or guaranteeing in any way any Contract in connection with any Person;
(iv) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits;
(v) Any Contract with any Governmental Authority;
(vi) Any Contract with respect to outstanding Indebtedness the discharge, storage or removal of effluent, waste or pollutants;
(vii) Any Contract for the purchase or commitments or guarantees in respect thereof) sale of the Company any Assets of Clinigence or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which business or for the Company option or a Subsidiary preferential rights to purchase or sell any Assets of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company Clinigence or any of its Subsidiaries;
(viiviii) each contract Any Contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) covenants not to compete in any line of business or with any Person in any geographical area or geographic area;
(viii) each partnershipthat would otherwise result in Clinigence or any of its Subsidiaries being bound by, joint ventureor subject to, limited liability company any non-compete or strategic alliance agreement to which other restriction on the Company operation or a Subsidiary scope of its businesses, including the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)Clinigence Business;
(ix) each contract between Any Contract related to the acquisition of a business or among the Company equity of any other Entity or any Subsidiary the sale of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company Clinigence or any of its Subsidiaries or any Asset of their respective “associates” Clinigence or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 any of the Exchange Act) or of the Company Manager, on the other handits Subsidiaries;
(x) each contract that obligates the Company Any other Contract which (i) provides for payment or performance by either party thereto having an aggregate value of $25,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, Clinigence or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorand an Affiliate thereof;
(xi) each vendorAny proposed arrangement of a type that, supplier or consulting or similar contract not otherwise if entered into, would be a Contract described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xiiSection 7.9(a)(i) each “material contract” (as such term is defined in Item 601(b)(10through 7.9(a)(x) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyabove.
(b) CollectivelyTrue and complete copies of each written Clinigence Material Contract and true and complete written summaries of each oral Clinigence Material Contract (including all amendments, the contracts set forth in Schedule 4.16(asupplements, modifications and waivers thereto) of the Company Disclosure Letter are herein referred have been provided to as the “Company ContractsiGambit by Clinigence.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company
(c) Each Clinigence Material Adverse Effect, each Company Contract is legal, currently valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectand is enforceable by Clinigence or its Subsidiaries, as to enforceabilityapplicable, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company accordance with its terms.
(d) Neither Clinigence nor any of its Subsidiaries is in breach default, and no party has notified Clinigence or default any of its Subsidiaries in writing that Clinigence or any of its Subsidiaries is in default, under any Company Contract norClinigence Material Contract. No event has occurred, to the knowledge and no circumstance or condition exists, that might, with or without notice or lapse of time:
(i) result in a violation or breach of any of the Companyprovisions of any Clinigence Material Contract;
(ii) give any Person the right to declare a default or exercise any remedy under any Clinigence Material Contract;
(iii) give any Person the right to accelerate the maturity or performance of any Clinigence Material Contract or to cancel, is terminate or modify any other party to Clinigence Material Contract; or
(iv) otherwise have an Clinigence Material Adverse Effect in connection with any such Company Contract in breach or default thereunder. Complete and accurate copies Clinigence Material Contract.
(e) Neither Clinigence nor any of each Company Contract in effect as its Subsidiaries has waived any of its rights under any Clinigence Material Contract.
(f) The performance of the date hereof Clinigence Material Contracts will not result in any violation of or failure by Clinigence or any of its Subsidiaries to comply in all material respects with any Legal Requirement.
(g) The Clinigence Material Contracts constitute all of the Contracts necessary to enable Clinigence and its Subsidiaries to conduct the Clinigence Business in the manner in which such Clinigence Business is currently being conducted.
(h) The consummation of the Merger shall not result in Clinigence or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its businesses, including all amendments and modifications) have been furnished to or otherwise made available to Parentthe Clinigence Business.
Appears in 2 contracts
Sources: Merger Agreement (iGambit, Inc.), Merger Agreement (iGambit, Inc.)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date For purposes of this Agreement, ofa “Material Contract”) shall mean:
(i) each contract Any employment, severance, retention, deal bonus, consulting or other Contract with any Company Personnel which will require the payment of amounts by the Company or any of its Subsidiaries, as applicable, after the date hereof in excess of $150,000 per annum;
(ii) Any collective bargaining agreement with any labor union;
(iii) Any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $500,000;
(iv) Any Contract, other than this Agreement) that involves a pending the Company Certificate, Company Bylaws or contemplated mergerother corporate documents of the Company and its Subsidiaries, business combination, acquisition, purchase, sale or divestiture that requires containing covenants of the Company or any of its Subsidiaries to dispose indemnify or hold harmless another person or group of persons, unless such indemnification or acquire assets hold harmless obligation to such person, or properties with group of persons, as the case may be, would not reasonably be expected to exceed a fair market value maximum of $500,000;
(v) Any Contract requiring aggregate future payments or expenditures in excess of $25,000,000500,000 and relating to corrective cleanup, abatement, remediation or similar actions in connection with environmental liabilities or obligations;
(iivi) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of Company IP Agreements;
(vii) Any Contract pursuant to which the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge its Subsidiaries has entered into a partnership or otherwise dispose of joint venture with any businesses, securities or assets other person (other than provisions requiring notice the Company or any of or consent to assignment by any counterparty theretoits Subsidiaries);
(iiiviii) Any (i) indenture, mortgage, loan, guarantee or credit Contract under which the Company or any of its Subsidiaries has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise or (ii) guaranteed indebtedness for money borrowed by others, in each contract relating case, for or guaranteeing an amount in excess of $500,000;
(ix) Any Contracts (i) providing for any “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated pursuant to outstanding Indebtedness (the Securities Act) where the result, purpose or commitments effect of such Contract is to avoid disclosure of any material transaction involving or guarantees in respect thereof) material liabilities of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, Company’s published financial statements or other investment in, Company SEC Documents or (ii) providing for any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of loan by the Company or any of its Subsidiaries to the counterparty to such Contract (including Parent upon consummation or to an affiliate of the Transactionssuch counterparty) to compete for an amount in excess of $250,000;
(x) Any Contract (i) containing a covenant that prohibits or restricts, in any material respect, the Company or any of its Subsidiaries from engaging in any business activities in any geographic area, line of business or customer segment or otherwise in competition with any Person Person, or geographic area(ii) that grants material exclusivity rights or “most favored nations” status to the counterparty thereof;
(viiixi) each partnership, joint venture, limited liability company Contracts providing for “earn-outs,” “performance guarantees” or strategic alliance agreement to which other similar contingent payments by the Company or any Subsidiary which would reasonably be expected to be in excess of $500,000 during any twelve-month period;
(xii) Any Government Contract or Government Bid, other than any such Government Contract or Government Bid that is with a Government-owned hospital or ambulance service and that would not reasonably be expected to involve payments by or to the Company or any Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)in excess of $250,000 per annum;
(ixxiii) each contract Any material Contract (including guarantees) between or among the Company or any wholly-owned Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned another Subsidiary of the Company that is not wholly-owned by the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(xxiv) each contract Any Contract entered into on or after January 1, 2001 relating to the acquisition or disposition of any business or any assets (whether by merger, sale of stock or assets or otherwise) in an amount in excess of $500,000 to the extent that obligates there are continuing obligations thereunder as of the date hereof; and
(xv) Any Contract (other than Contracts of the type described in subclauses (i) through (xiv) above) that involves aggregate payments by or to the Company or any of its Subsidiaries to indemnify any in excess of $500,000 per annum, other than purchase or sales orders or other Contracts entered into in the ordinary course of business consistent with past practice that are terminable or present directors, officers, or employees of cancelable by the Company or any of its Subsidiaries pursuant to which the Company without penalty on 90 days’ notice or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyless.
(b) Collectively, the contracts set forth in Schedule 4.16(aSection 3.09(a) of the Company Disclosure Letter are herein referred to Schedule sets forth a list of all Material Contracts as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and date of this Agreement. Each such Material Contract is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is has repudiated or waived any material provision of such Material Contract, except to the extent that (i) such Material Contract has previously expired in breach accordance with its terms or default under (ii) the failure to be in full force and effect, or any such repudiation or waiver, individually or in the aggregate, has not had and would not reasonably be likely to have a Material Adverse Effect. Neither the Company Contract nor any of its Subsidiaries, nor, to the knowledge of the Company’s Knowledge, is any other party counterparty to any such Company Contract Material Contract, has violated or is alleged to have violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default under the provisions of any such Material Contract, except in breach each case for those violations and defaults which, individually or default thereunder. Complete in the aggregate, has not had and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) would not reasonably be likely to have been furnished to or otherwise made available to Parenta Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (McKesson Corp), Merger Agreement (Per Se Technologies Inc)
Material Contracts. (a) Schedule 4.16(aSection 3.13(a) of the Company Disclosure Letter sets forth a true and complete list, list of all Material Contracts as of the date of this Agreement, of:
(i) each contract (other than . For purposes of this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires “Material Contract” means any Contract to which the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to by which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” properties or “immediate family” members assets is bound (as such terms are defined in Rule 12b-2 other than this Agreement and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;Benefit Plans) that:
(xi) each contract that obligates relates to the Company formation, creation, governance or any of its Subsidiaries to indemnify any past or present directors, officerscontrol of, or employees the economic rights or obligations of the Company or any of its Subsidiaries pursuant in, any joint venture, partnership or other similar arrangement that is material to which the business of the Company and its Subsidiaries, taken as a whole;
(ii) provides for Indebtedness of the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendorhaving an outstanding or committed amount in excess of $ 750,000, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that other than (A) cannot be voluntarily terminated pursuant to Indebtedness solely between or among any of the Company and any of its terms within sixty (60) days after the Effective Time Subsidiaries and (B) under which it is reasonably expected letters of credit;
(iii) relates to the employment, severance, retention or indemnification of any employee of the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs that receives compensation in an amount in excess of $50,000 following the Effective Time; and250,000 per annum;
(xiiiv) each “material contract” relates to the acquisition or disposition of any business, assets or properties (as whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such term is defined Contract in Item 601(b)(10excess of $ 750,000 (A) of Regulation Sthat was entered into after January 1, 2013, or (B) pursuant to which any earn-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by the Company or any Subsidiary of its Subsidiaries of more than $250,000;
(v) prohibits the payment of dividends or distributions in respect of the Companycapital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of any guarantee by the Company or any of its Subsidiaries;
(vi) is (or contains provisions described in this clause (vi) that are or would reasonably be expected to be) material to the business of the Company and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Subsidiaries from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any person that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(vii) relates to any real property owned or leased by the Company or its Subsidiaries;
(viii) to which any Card Network, Regions Bank or any other BIN sponsor bank is party;
(ix) relates to an agreement with (a) Emdeon Business Services LLC or its Affiliates, (b) one of the top ten (10) resellers (based on revenues derived from such resellers during the twelve-month period ending on December 31, 2013), or (c) one of the top ten (10) fuel merchants (based on revenues derived from such fuel merchants during the twelve-month period ending on December 31, 2013); or
(x) (A) is not otherwise covered by clauses (i) through (ix) of this Section 3.13(a) and (B) either (x) is with a vendor or supplier pursuant to which the Company and its Subsidiaries made payments of $1 million or more in the twelve-month period ending on May 31, 2014, or (y) is with a top ten (10) customer of the Company and its Subsidiaries (based on revenues derived from such customers during the twelve-month period ending on December 31, 2013) for each Business Line.
(b) Collectively, the contracts set forth in Schedule 4.16(a) All of the Company Disclosure Letter Material Contracts are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, valid and binding and enforceable in full force and effect (except those that terminate or are terminated after the date of this Agreement in accordance with its terms on their respective terms). To the Company and each of its Subsidiaries that is a party thereto and, to the knowledge Knowledge of the Company, each no Person is challenging the validity or enforceability of any Material Contract. Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company, any of the other party parties thereto, has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a material default under any provision of, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach has received written notice that it has violated or default under defaulted under, any Material Contract. Company Contract nor, has delivered to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies Parent a complete copy of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Material Contracts. (a) Schedule 4.16(aSection 3.08(a) of the Company Disclosure Letter Schedules sets forth a true true, correct and complete list, list of the following Contracts to which any Group Company is a party as of the date hereof (and Sellers have made available to Buyer true, correct and complete copies of this Agreementall such Contracts, of:together with all amendments, modifications or supplements thereto):
(i) each contract (other than this Agreement) any Contract relating to the formation, creation, governance, economics or control of any partnership, joint venture, strategic alliance or similar arrangement with any Person that involves is not a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000Group Company;
(ii) any Contract relating to any options, rights (preemptive or otherwise), warrants, calls or convertible securities of the Purchased Entities;
(iii) any Contract relating to (A) the Indebtedness of any Group Company in excess of $100,000 or (B) the mortgage or pledge of, or otherwise creating an Encumbrance (other than a Permitted Encumbrance) on, any of the Purchased Assets in excess of $100,000 (in each contract case, other than intercompany Indebtedness amongst the Group Companies);
(iv) any Contract relating to the acquisition or disposition of any business, assets or properties for consideration in excess of $100,000 (whether by merger, sale of stock, sale of assets or otherwise) as to which any material earn-out, indemnification or deferred or contingent payment obligations remain outstanding (in each case, excluding for the avoidance of doubt, purchase of inventory in the Ordinary Course);
(v) any Lease with respect to the Leased Real Property;
(vi) any Contract for the lease of tangible personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(vii) any Contract with any Material Supplier;
(viii) any Contract with any Governmental Authority;
(ix) any Contract that (A) prohibits or limits the freedom of any Group Company to compete in any line of business with any Person or in any geographic area or (B) contains exclusivity obligations or restrictions binding on any Group Company or (C) grants any right of first refusal or right of first offer obligations or that limits the ability of the Company, restrictions to any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handPerson;
(x) each contract any material Contract under which any Group Company (A) has licensed any Intellectual Property from a third party (other than non-exclusive licenses for commercially available or off-the-shelf software or software that obligates the Company is subject to click through or any of its Subsidiaries to indemnify any past or present directors, officersshrink wrap agreements), or employees (B) grants to any third party any right to use or exploit any Purchased Intellectual Property (other than non-exclusive licenses of any Purchased Intellectual Property granted in the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorOrdinary Course);
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) any Service Provider Agreement that (Ai) canprovides for annual base compensation in excess of $150,000 or (ii) is not be voluntarily terminated pursuant to its terms within terminable at-will, has more than a sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company day contractual termination notice period or any provides for contractual severance or change of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Timecontrol benefits; and
(xii) each “material contract” (as such term any Contract that is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companya Collective Bargaining Agreement.
(b) CollectivelyWith respect to each Contract set forth on Section 3.08(a) of the Disclosure Schedules, and subject to entry of the Sale Order and any other applicable Order necessary to consummate the transactions contemplated by this Agreement and the other Transaction Documents and the assumption by Buyer of the applicable Contract in accordance with applicable Law (including satisfaction of all applicable Cure Costs), and except (x) as a result of the commencement of the Chapter 11 Cases or (y) with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated, or replaced, (i) such Contract is in full force and effect and constitutes the legal, valid and binding obligation of the Group Company party thereto and, to the Knowledge of Sellers, the contracts counterparty thereto, enforceable against such Group Company and, to the Knowledge of Sellers, the counterparty thereto in accordance with its terms and conditions, subject to the Bankruptcy Law; (ii) the Cure Costs set forth in the Original Contract & Cure Schedule 4.16(aare true and correct; (iii) except as set forth on Section 3.08(b)(iii) of the Disclosure Schedules, neither the Group Company party thereto nor, to the Knowledge of Sellers, the counterparty thereto is in material breach or material default thereof that would permit or give rise to a right of termination, modification or acceleration thereunder; and (iv) except as set forth on Section 3.08(b)(iv) of the Disclosure Letter are herein referred Schedules, no Group Company and, to as the “Company Contracts.” Except as Knowledge of Sellers, no counterparty thereto, has commenced any Proceeding against any other party to such Contract or given or received any written notice of any breach or default under such Contract that has not been withdrawn or dismissed, except, in the cases of clauses (iii) and (iv), for breaches or defaults caused by or resulting from, or filings or objections made in, the Chapter 11 Cases or which would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, be material and adverse to the knowledge of Business, the CompanyPurchased Assets, is any other party to any such Company Contract in breach the Purchased Entities or default thereunder. Complete and accurate copies of each Company Contract in effect the Assumed Liabilities, taken as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parenta whole.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (iMedia Brands, Inc.), Asset and Equity Purchase Agreement (iMedia Brands, Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 4.13 of the Company Parent Disclosure Letter sets forth a true and complete listlist of each of the following Contracts to which, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company Parent Entities or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);each, a “Parent Material Contract”):
(ixi) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act) not otherwise SEC as determined as of the date of this Agreement, other than those agreements and arrangements described in this Section 4.16(aItem 601(b)(10)(iii)) with respect to Parent);
(ii) each Contract (A) not to (or otherwise restricting or limiting the Company ability of the Parent Entities or any of their respective Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of the Parent Entities or any of their respective Subsidiaries to conduct business in any geographic area;
(iii) each Contract (other than any Parent Benefit Plan) providing for or resulting in payments by the Parent Entities or any of their respective Subsidiaries that exceeded $250,000 in the calendar year ended December 31, 2020;
(iv) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Parent Assets;
(v) all material Contracts for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to any Intellectual Property) or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment;
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any agreement with any director, officer or shareholder of Parent or any Subsidiary that is required to be described under Item 404 of Regulation S-K of the CompanySEC in the Parent SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(ix) any agreement for the disposition or acquisition by the Parent Entities or any of their respective Subsidiaries, with material obligations of the Parent Entities or any of their respective Subsidiaries (other than confidentiality obligations) remaining to be performed or material liabilities of the Parent Entities or any of their respective Subsidiaries continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to shareholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(xi) any Contract in which any Parent Entity or any of their respective Subsidiaries has licensed any Parent Owned Intellectual Property to any other Person or has licensed any other Person’s Intellectual Property rights, other than non-exclusive licenses (x) entered into in the ordinary course of business with aggregate payments of less than $200,000 or (y) for commercially available shrink wrap or off the shelf software;
(xii) any Contract for the development of Intellectual Property, other than those entered into in the ordinary course of business with Parent employees and contractors on the Parent’s standard form for such Contracts; and
(xiii) to the extent not set forth in Section 4.13(a) of the Parent Disclosure Letter pursuant to another subsection of this Section 4.13(a), all material agreements with any Governmental Authority.
(b) CollectivelyA true and complete copy of each Parent Material Contract (including any amendments thereto) entered into prior to the date of this Agreement has been filed as an exhibit (by reference or otherwise) to the Parent Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed with the contracts set forth SEC on March 3, 2021 or disclosed by Parent in Schedule 4.16(a) of a subsequent Parent SEC Report or made available to the Company Disclosure Letter are herein referred prior to as the “Company Contracts.” Except as date of this Agreement. Each Parent Material Contract is a valid and binding agreement of Parent or its applicable Subsidiary, except where the failure to be valid and binding would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect, (i) neither Parent or such Subsidiary nor, to the Company nor Knowledge of Parent, any of its Subsidiaries other party thereto, is in breach of or default under any Company Contract norsuch Parent Material Contract, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect (ii) as of the date hereof of this Agreement, there are no material disputes with respect to any such Parent Material Contract and (including all amendments and modificationsiii) have been furnished as of the date of this Agreement, no party under any Parent Material Contract has given written notice of its intent to terminate or otherwise made available seek a material amendment to Parentsuch Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ikonics Corp), Merger Agreement (Ikonics Corp)
Material Contracts. (a) Schedule 4.16(aSection 5.12(a) of the Company REIT II Disclosure Letter sets forth a true and complete list, list of each Contract (other than a Benefit Plan) in effect as of the date hereof to which REIT II or any REIT II Subsidiary is a party or by which any of this Agreement, ofits properties or assets are bound that:
(i) each contract is required to be filed as an exhibit to REIT II’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4) or (9) of Regulation S-K promulgated under the Securities Act;
(ii) obligates REIT II or any REIT II Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to REIT II or any REIT II Subsidiary;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of REIT II or any REIT II Subsidiary, including upon consummation of the transactions contemplated by this Agreement) , or that involves a pending or contemplated merger, otherwise restricts the lines of business combination, acquisition, purchase, sale or divestiture that requires the Company conducted by REIT II or any REIT II Subsidiary or the geographic area in which REIT II or any REIT II Subsidiary may conduct business;
(iv) is a Contract that obligates REIT II or any REIT II Subsidiary to indemnify any past or present directors, officers, or employees of its Subsidiaries REIT II or any REIT II Subsidiary pursuant to which REIT II or any REIT II Subsidiary is the indemnitor;
(v) constitutes (A) an Indebtedness obligation of REIT II or any REIT II Subsidiary with a principal amount as of the date hereof greater than $500,000 or (B) a Contract (including any so called take-or-pay or keepwell agreements) under which (1) any Person including REIT II or a REIT II Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of REIT II or REIT II Subsidiary or (2) REIT II or a REIT II Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including REIT II or another REIT II Subsidiary (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vi) requires REIT II or any REIT II Subsidiary to dispose of or acquire assets or properties that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $25,000,000500,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(iivii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement Contract relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, constitutes a loan to any Person (other than a Wholly Owned REIT II Subsidiary or the REIT II Operating Partnership) by REIT II or any REIT II Subsidiary in an amount in excess of $500,000;
(ix) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company REIT II or any REIT II Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than with a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handthird party;
(x) each contract that obligates prohibits the Company pledging of the capital stock of REIT II or any REIT II Subsidiary or prohibits the issuance of its Subsidiaries to indemnify guarantees by any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorREIT II Subsidiary;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andwith a Governmental Authority;
(xii) has continuing “earn-out” or other similar contingent purchase price payment obligations, in each “material contract” (as such term is defined case that could result in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havepayments, individually or in the aggregate, in excess of $500,000;
(xiii) is an employment Contract or consulting Contract;
(xiv) is a Company collective bargaining agreement or other Contract with any labor organization, union or association;
(xv) is a franchise, license or other similar agreement providing the right to utilize a brand name or other rights of a hotel chain or system at any of the REIT II Properties (the “REIT II Franchise Agreements”);
(xvi) is a management agreement pursuant to which any third party manages or operates any of the REIT II Properties on behalf of REIT II or any REIT II Subsidiary (the “REIT II Management Agreements”);
(xvii) is a ground lease under which REIT II or any REIT II Subsidiary holds a leasehold interest in the REIT II Properties or any portion thereof; or
(xviii) is both (A) not made in the ordinary course of business consistent with past practice and (B) material to REIT II and the REIT II Subsidiaries, taken as a whole.
(b) Each Contract in any of the categories set forth in Section 5.12(a) to which REIT II or any REIT II Subsidiary is a party or by which it is bound as of the date hereof is referred to herein as a “REIT II Material Adverse Effect, each Company Contract.”
(c) Each REIT II Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company REIT II Parties and each of its Subsidiaries other REIT II Subsidiary that is a party thereto and, to the knowledge Knowledge of the CompanyREIT II, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). The REIT II Parties and each other REIT II Subsidiary has performed all obligations required to enforceabilitybe performed by it prior to the date hereof under each REIT II Material Contract and, to Creditors’ Rightsthe Knowledge of REIT II, each other party thereto has performed all obligations required to be performed by it under such REIT II Material Contract prior to the date hereof. Except as Neither REIT II nor any REIT II Subsidiary, nor, to the Knowledge of REIT II, any other party thereto, is in breach or violation of, or default under, any REIT II Material Contract, and no event has occurred that, with notice or lapse of time or both, would not reasonably be expected to haveconstitute a violation, breach or default, under any REIT II Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a Company REIT II Material Adverse Effect, neither the Company . Neither REIT II nor any REIT II Subsidiary has received notice of its Subsidiaries is in breach any violation or default under under, or owes any Company Contract nortermination, to the knowledge of the Company, is cancellation or other similar fees or any other party liquidated damages with respect to any such Company Contract REIT II Material Contract, except for violations or defaults, or fees or damages, that, individually or in breach or default thereunderthe aggregate, would not reasonably be expected to have a REIT II Material Adverse Effect. Complete Since December 31, 2015 and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished hereof, neither REIT II nor any REIT II Subsidiary has received any written notice of the intention of any party to cancel, terminate, materially change the scope of rights under or otherwise made available fail to Parentrenew any REIT II Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
Material Contracts. (a) Schedule 4.16(aExcept as set forth on Section 3.16(a) of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date of this Agreementhereof, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) none of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed is a party to or secured bound by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;any:
(ivA) other than contracts entered into in the ordinary course Contract relating to indebtedness for borrowed money or to mortgaging, pledging or otherwise placing a Lien on any material portion of businesstheir assets, each contract (B) Contract relating to any factoring, supplier, trade or vendor financing or (C) Contract under which the Company it has advanced or a Subsidiary of the Company has, directly or indirectly, made loaned any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary any of its Subsidiaries), in each case of the Companyforegoing clauses (A) and (B), in an amount in excess of $500,000, and in case of the foregoing clause (C), in an amount in excess of $250,000;
(ii) guaranty of any financial obligation made on behalf of any Person other than the Company or any of its Subsidiaries or other guaranty, in each case, in an amount in excess of $250,000;
(iii) Contract with respect to any interest rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries);
(viv) each contract that involves Contract involving any resolution or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction settlement of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which actual or threatened Proceeding against the Company or any of its Subsidiaries involving (A) a Subsidiary payment in excess of $1,000,000 and entered into within the Company is a party other than at-will arrangements that can be terminated at last three (3) years or (B) any time without material liability to ongoing requirements or restrictions on the Company or any of its Subsidiaries;
(viiv) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaLeased Real Property Leases and Landlord Leases;
(viiivi) each partnership, joint venture, limited liability company lease or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to under which the Company or any of its Subsidiaries is lessee or lessor of, or holds or operates any material personal property owned by any other party, or permits any Third Party to hold or operate any material personal property owned or controlled by the indemnitorCompany or any of its Subsidiaries, in each case for which the annual rental exceeds $500,000;
(xivii) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that agreements (A) cannot be voluntarily terminated pursuant relating to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected any pending or completed material business combination, merger, acquisition or divestiture or similar transaction by the Company or any of its Subsidiaries will be required within the last three (3) years, (B) pursuant to pay feeswhich any of the Company or any of its Subsidiaries has remaining material obligations or liabilities relating to any completed material business combination, expenses merger, acquisition or divestiture or similar transaction, or (C) giving any person the right to acquire any material equity interests, stock, assets or businesses of the Company or any of its Subsidiaries after the date hereof;
(viii) Contract concerning (A) the formation, creation, operation, management or control of any joint venture, partnership or similar agreement or other costs similar arrangement with a Third Party or (B) the ownership of any equity interest in any entity or business other than the Subsidiaries of the Company, in each case that is material to the business of the Company and its Subsidiaries, taken as a whole;
(ix) Contract pursuant to which (A) the Company or any of its Subsidiaries are licensed or otherwise permitted by a Third Party to use any Intellectual Property material to the business of the Company and its Subsidiaries, taken as a whole (other than non-exclusive licenses of “shrink-wrap”, “click-wrap” and “off-the-shelf” software, and non-exclusive licenses of other software that is generally commercially available with one-time or aggregate annual license, maintenance, support and other fees of $500,000 or less per vendor) or (B) any Third Party is licensed or otherwise permitted to use any material Company Intellectual Property;
(x) Contract which (A) expressly limits or prohibits the Company or any of its Subsidiaries from competing or freely engaging in business anywhere in the world, (B) purports to restrict the ability of Parent or its Subsidiaries (including the Surviving Corporation and its Subsidiaries) following the Effective Time to compete in any line of business or (C) contains any right of first refusal, right of first negotiation or offer, “most favored nation,” exclusivity or similar covenants that would materially restrict future business activity of the Company or any of its Subsidiaries following the Effective Time, excluding customary back-solicitation provisions;
(xi) with respect to material Company Intellectual Property, any (A) Contract that limits the freedom or right of the Company or any of its Subsidiaries to use such Company Intellectual Property, (B) settlement Contract, consent-to-use or co-existence agreement or (C) Contract providing for the assignment, ownership, creation or development of such Company Intellectual Property (excluding employee and independent contractor agreements on the standard form of the Company or any of its Subsidiaries which are entered into in the ordinary course of business);
(xii) Contract between any Governmental Entity and the Company or any of its Subsidiaries;
(xiii) collective bargaining agreement, neutrality agreement, card check agreement or any other Contract with any union, works council or other labor organization affecting any employee of the Company or any of its Subsidiaries;
(xiv) Contract between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or its Subsidiaries or any person beneficially owning 5% or more of the outstanding Shares, on the other hand (except for any Company Benefit Plan);
(xv) Contract with (A) each of the twenty (20) largest customers (measured by approximate dollar volume of sales by the Company and its Subsidiaries to such customers) of the Company and its Subsidiaries, in each case, for the 12‑month period ending March 31, 2022 and (B) suppliers of the Company and its Subsidiaries paid more than $1,800,000 for the 12-month period ending March 31, 2022;
(xvi) Contract which restricts the payment of dividends or distributions in respect of any Equity Interests of the Company and its Subsidiaries; or
(xvii) other than customer Contracts entered into in the ordinary course, any other Contract not covered by any other subsection hereof, which involves annual consideration in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.2,500,000;
(b) CollectivelyThe Company has delivered or made available to Parent or its Representatives, the contracts including by filing as exhibits to Company SEC Documents, as applicable, true and correct copies in all material respects of all written Contracts that are required to be set forth in Schedule 4.16(aon Section 3.16(a) of the Company Disclosure Letter are herein referred to as Schedule (collectively, the “Company Material Contracts”), together with all material amendments, waivers or other changes thereto (but subject, in each case, to redactions of pricing and other competitively sensitive information to the extent required by Antitrust Law).”
(c) Except for those that have terminated or expired in accordance with their terms, and except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each of the Company and its Subsidiaries have performed the obligations required to be performed by it and is not in default under, in breach of, nor in receipt of any written claim of default or breach under, any Company Material Contract, (ii) no event has occurred which, with the passage of time or the giving of notice or both, would result in a default or breach by the Company or any of its Subsidiaries that is a party thereto andunder any Company Material Contract and (iii) as of the date hereof, to the knowledge Knowledge of the Company, each there is no breach or threatened breach by the other parties to any Company Material Contract. Except for those that have terminated or expired in accordance with their terms, and except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, all of the Company Material Contracts are valid and in full force and effect and constitute legal, valid and binding obligations of the Company or its Subsidiaries party thereto, and is are enforceable against the Company or its Subsidiaries party thereto in full force accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and effect, other similar Laws affecting creditors’ rights generally and subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to havegeneral principles of equity), individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norand, to the knowledge Knowledge of the Company, is any constitute legal, valid and binding obligations of the other party or parties thereto, enforceable against such party or parties in accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws affecting creditors’ rights generally and subject, as to any such Company Contract in breach or default thereunder. Complete and accurate copies enforceability, to general principles of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentequity).
Appears in 2 contracts
Sources: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete listExcept for this Agreement, as of the date of this Agreement, ofneither Maverick nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding any Maverick Benefit Plan) (each, a “Contract”) that:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each be filed by ▇▇▇▇▇▇▇▇ as a “material contract” (as such term is defined in Item item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described in this Section 4.16(aincludes any contingent payment obligations or similar payment obligations (including any “earn-out” obligations) with respect that would require payments to the Company any person (other than Maverick, a wholly owned Subsidiary of Maverick, Cavalier, or any Subsidiary of Cavalier) arising in connection with the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) acquisition or disposition by Maverick or any of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as its Subsidiaries of any business which payment obligations would not reasonably be expected to haveresult in future payments by Maverick or its Subsidiaries that exceed, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable 1,000,000;
(iii) (A) limits in accordance with any material respect either the type of business in which Maverick or its terms on the Company and each Subsidiaries (or in which Cavalier or any of its Subsidiaries after the Closing) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of Maverick or its Subsidiaries or, after the Closing, Cavalier or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Closing, would apply to Cavalier or any of its Subsidiaries, including Maverick and its, and would run in favor of any Person (other than Maverick, a wholly owned Subsidiary of Maverick, Cavalier, or any Subsidiary of Cavalier);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract, repurchase agreement or other Contract representing, or any guarantee of, indebtedness for borrowed money of Maverick or any Subsidiary of Maverick (including, for the avoidance for the avoidance of doubt, any Secured Company Indebtedness) in excess of $100,000,000 (excluding any government-mandated or state-wide bonds or guarantees) or (B) is a guarantee by Maverick or any of its Subsidiaries of such indebtedness of any person other than Maverick or a wholly-owned Subsidiary of Maverick in excess of, $100,000,000 (excluding any government-mandated or state-wide bonds or guarantees);
(v) grants (A) rights of first refusal, rights of first negotiation or similar rights, or (B) puts, calls or similar rights, to any person (other than Maverick or a wholly owned Subsidiary of Maverick) with respect to any asset that is material to Maverick;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on Maverick or any of its Subsidiaries;
(vii) limits or restricts the ability of Maverick or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a partnership, limited liability company, joint venture or other similar agreement or arrangement, in each case that is material to Maverick, relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which Maverick owns, directly or indirectly, any voting or economic interest of 10% or more and has invested or is contractually required to invest capital in excess of $10,000,000, other than with respect to any wholly owned Subsidiary of Maverick;
(ix) relates to the acquisition or disposition of any business or assets pursuant to which Maverick or any of its Subsidiaries has any liability in excess of $50,000,000 in any transaction or series of related transactions;
(x) is a Contract pursuant to which Maverick or any of its Subsidiaries grants to a third party thereto or receives from a third party a license, an allocation of ownership of future-developed IP (other than pursuant to employee or contractor assignment agreements entered into in the ordinary course of business), a non-assert or any similar right or trademark co-existence agreement with respect to any material intellectual property rights (other than (A) inbound non-exclusive licenses of off-the-shelf or commercially available software or information technology services that individually have an ongoing cost of $10,000,000 or less per annum and (B) non-exclusive licenses entered into by Maverick or any of its Subsidiaries in the ordinary course of business);
(xi) is a Contract the purpose of which is to provide for indemnification of any officer or director of (A) Maverick or (B) any of the Maverick Significant Subsidiaries;
(xii) is any confidentiality agreement or standstill agreement Maverick has entered into with any third party (or any agent thereof) containing any exclusivity or standstill provisions that are or will be binding on Maverick, any of its Subsidiaries or, after the Closing, Cavalier or any of its Subsidiaries; or
(xiii) is a Contract with the 10 largest vendors of Maverick and its Subsidiaries on a consolidated basis (as measured by amounts paid or payable by Maverick and its Subsidiaries on a consolidated basis during 2024), other than legal, accounting and tax providers.
(b) Each such Contract described in clauses (i) through (xi) and not (xii) above is referred to herein as a “Material Contract.” As of the date of this agreement, (i) each Material Contract is a valid and binding obligation of Maverick and its Subsidiaries as applicable and, to the knowledge of the CompanyMaverick, each other party thereto, and is in full force and effecteffect and enforceable by Maverick or the applicable Subsidiary, subjectin each case, as to enforceability, subject to Creditors’ Rights. Except , except as would not reasonably be expected to havenot, individually or in the aggregate, be reasonably likely to have a Company Maverick Material Adverse Effect, and (ii) neither the Company Maverick nor any of its Subsidiaries is in breach or default under any Company Contract Subsidiaries, nor, to the knowledge of the CompanyMaverick, is any other party to any such Company a Material Contract is in breach or violation of any provision of, or in default thereunderunder, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Maverick Material Adverse Effect. Complete and accurate copies A copy of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have has previously been furnished to or otherwise made available to ParentCavalier.
Appears in 2 contracts
Sources: Merger Agreement (Mr. Cooper Group Inc.), Merger Agreement (Rocket Companies, Inc.)
Material Contracts. (a) Schedule 4.16(a) 4.19 of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, of each of the Company’s Material Contracts (true, correct and complete copies of which have been made available to Parent prior to the date of this Agreement, subject to the redaction of certain price, term and termination provisions of:
(i) each contract (other than , and certain clearly marked exhibits and schedules to, such Contracts). As used in this Agreement) that involves a pending , “Material Contract” means each Contract, written or contemplated mergeroral, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company its Subsidiaries is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to by which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” properties or “immediate family” members (as such terms assets are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;bound,
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(ai) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described that involves required payments or receipts by or to the Company and/or its Subsidiaries in this Section 4.16(aan amount in excess of $250,000, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of its Subsidiaries, upon notice of thirty calendar days or less;
(iii) with respect that grants exclusivity, any right of first refusal or right of first offer or that limits or purports to limit the ability of the Company or any Subsidiary of the Company to compete with or obtain products or services from any Person or own, operate, sell, transfer or otherwise dispose of any material amount of assets or businesses or imposes similar restrictions;
(iv) that restricts the payment of dividends or distributions in respect of any capital stock of the Company or its Subsidiaries, or the purchase, redemption or other acquisition of such capital stock;
(v) that relates to any acquisition or divestiture by the Company or any of its Subsidiaries of a business or any assets or capital stock of a Person and pursuant to which the Company or any Subsidiary of the Company has any material continuing obligation (including any material indemnification obligation or any material obligation relating to an earn-out or other similar payments);
(vi) that (A) purports to limit in any material respect either the type of business in which the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates) may engage or the manner or locations in which any of them may so engage in any business; (B) could require the disposition of any material assets or line of business of the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates); (C) grants “most favored nation” status that, following the Merger, would apply to Parent and/or its Affiliates; or (D) materially prohibits or limits the right of the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights;
(vii) that relates to indebtedness for borrowed money (including the issuance of any debt security), any capital lease obligations, any guarantee of such indebtedness or debt securities of any other Person, or any “keep well” or other agreement to maintain any financial statement condition of another Person;
(viii) that would prevent or materially impair the Company’s ability to consummate the Merger or other transactions contemplated hereby;
(ix) that is any joint venture or partnership agreement or other similar agreement or arrangement entered into with another Person relating to the formation, creation, operation, management or control of any partnership or joint venture;
(x) that relates to an investment in any other Person that either requires payments over the term of the investment in excess of $1,000,000 in value, whether in cash or assets, or pursuant to which the Company or its applicable Subsidiary has the right to designate one or more members to the board of directors or similar governing body of such Person (or its Affiliates) or other governance rights with respect to such Person (or its Affiliates); or
(xi) that is listed (or required to be listed) in Schedule 4.15(b) of the Company Disclosure Schedule.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, : (i) each Company Contract of the Material Contracts is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and each of or its Subsidiaries that is a party thereto Subsidiaries, as the case may be, and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject(ii) no event has occurred with respect to the Company or any of its Subsidiaries, as and neither the Company nor any of its Subsidiaries, nor to enforceabilitythe Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to Creditors’ Rights. Except as take any act which, with or without notice, lapse of time, or both, would not reasonably be expected to have, individually or in constitute a default under the aggregate, a Company provisions of such Material Adverse Effect, Contract and (iii) neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is has received notice from any other party to a Material Contract that it has breached, violated or defaulted under any Material Contract or that any such party intends to terminate, or not to renew, any such Material Contract. Neither the Company nor any of its Subsidiaries is party to any Contract containing any provision or covenant limiting in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as any material respect the ability of the date hereof Company or any of its Subsidiaries (including all amendments and modificationsor, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) have been furnished to (i) sell any products or otherwise made available services of or to any other Person or in any geographic region, (ii) engage in any line of business or (iii) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries).
Appears in 2 contracts
Sources: Merger Agreement (LoopNet, Inc.), Merger Agreement (Costar Group Inc)
Material Contracts. (a) Schedule 4.16(aPart 2.9(a) of the Company Disclosure Letter sets forth a true and complete listSchedule identifies, as of the date of this Agreement, ofeach of the following Company Contracts:
(i) each contract any Contract: (A) pursuant to which any of the Acquired Companies is or may become obligated to make or provide any severance, termination, change in control or similar payment or benefit to any Company Associate; or (B) pursuant to which any of the Acquired Companies is or may become obligated to make any bonus (paid in cash or stock) or similar payment (other than this Agreementpayments constituting base salary and commissions and payments made in the ordinary course of business) that involves in excess of $100,000 to any Company Associate;
(ii) any Contract, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be triggered or increased, or the vesting of any of the benefits of which will be accelerated, by the consummation of any of the Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions (either alone or in connection with a pending previous or contemplated mergersubsequent termination of employment or service in combination therewith);
(iii) any collective bargaining, business combination, union or works council agreement;
(iv) any Contract relating to the acquisition, purchasedevelopment, sale or divestiture disposition of any business unit, product line or material Company IP, except for assignments of Intellectual Property and Intellectual Property Rights to the Acquired Companies from their employees or contractors on standard forms used by the Acquired Companies;
(v) any Contract that provides for indemnification of any Company Associate;
(vi) any Contract (excluding Leases): (A) involving a material joint venture, strategic alliance, partnership or sharing of profits or revenue or similar agreement; or (B) for any capital expenditure in excess of $1,000,000;
(vii) any Contract relating to the acquisition, transfer, development (including joint development) or joint ownership of any material Intellectual Property or Intellectual Property Rights, except for assignments of Intellectual Property and Intellectual Property Rights to the Acquired Companies from their employees or contractors on standard forms used by the Acquired Companies;
(viii) any Contract (excluding Leases): (A) relating to the disposition or acquisition by any Acquired Company of any assets (other than dispositions of inventory in the ordinary course of business consistent with past practice) or any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $5,000,000; or (B) pursuant to which any Acquired Company will acquire any interest, or will make an investment, in any other Person, other than another Acquired Company;
(ix) any Contract imposing any restriction in any material respect on the right or ability of any Acquired Company: (A) to engage in any line of business or compete with, or provide any service to, any other Person or in any geographic area; (B) to acquire any material product or other asset or any service from any other Person, sell any product or other asset to or perform any service for any other Person, or transact business or deal in any other manner with any other Person; or (C) to develop, sell, supply, license, distribute, offer, support or service any product or any Intellectual Property or other asset to or for any other Person;
(x) any Contract that: (A) grants exclusive rights to license, market, sell or deliver any product or service of any Acquired Company; (B) contains any “most favored nation” or similar provision in favor of the counterparty; (C) contains a right of first refusal, first offer or first negotiation or any similar right with respect to a material asset owned by an Acquired Company; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material portion of an Acquired Company’s requirements from any third party;
(xi) each Contract that provides to another Person the right to purchase, license or otherwise acquire an unlimited quantity of or unlimited usage of Company Products (based on any Acquired Company’s ordinary pricing metrics for such Company Products) for a fixed aggregate price or at no additional charge (including through “enterprise wide,” “unlimited use” or “all you can eat” provisions);
(xii) any mortgage, indenture, guarantee, loan, credit agreement, security agreement or other Contract relating to the borrowing of money or extension of credit, in each case, in excess of $5,000,000, other than: (A) accounts receivable and accounts payable; (B) loans to or guarantees of obligations of direct or indirect wholly owned Subsidiaries of the Company, in each case, arising or provided in the ordinary course of business consistent with past practice; and (C) extensions of credit to customers in the ordinary course of business;
(xiii) any Contract: (A) that creates any obligation under any interest rate, currency or commodity derivative or hedging transaction; or (B) pursuant to which any Acquired Company creates or grants a material Encumbrance on any of its Subsidiaries to dispose of properties or acquire assets or properties other assets;
(xiv) any Contract with a fair market Major Customer or a Major Supplier;
(xv) any Contract (excluding Leases) that contemplates or involves the payment or delivery of cash or other consideration by or to any Acquired Company in an amount or having a value in excess of $25,000,0001,000,000 in the aggregate, or contemplates or involves the performance of services by or for any Acquired Company having a value in excess of $1,000,000 in the aggregate, other than a purchase order for the sale or purchase of products or services in the ordinary course of business under which the Acquired Companies have made or received payments of less than $1,000,000 in aggregate;
(iixvi) each contract any settlement, conciliation or similar Contract: (A) that grants materially restricts or imposes any material obligation on any Acquired Company or materially disrupts the business of any of the Acquired Companies as currently conducted; or (B) that would require any of the Acquired Companies to pay consideration valued at more than $500,000 in the aggregate after the date of this Agreement;
(xvii) any material Government Contract; and
(xviii) any Contract (other than a Contract evidencing any Company Equity Award on the form or forms used by the Company in the ordinary course of business and Made Available to Parent): (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any security; (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any security; or (C) providing any of the Acquired Companies with any right of first refusal or similar right with respect to, or right to repurchase or redeem, any security. For purposes of first offer or that limits the ability this Agreement, Company Contracts of the Company, any Subsidiary of the Company or any of their respective Affiliates type required to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees be set forth in respect thereofPart 2.9(a) of the Company or any of its Subsidiaries (whether incurredDisclosure Schedule, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect and each Lease shall be deemed to the constitute a “Material Contract.” The Company or any Subsidiary has Made Available to Parent an accurate and complete copy of the Companyeach Material Contract.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, each Company Contract is legal, valid, binding valid and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectand is enforceable in accordance with its terms, as subject to enforceabilitythe Enforceability Exceptions. None of the Acquired Companies, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norand, to the knowledge Knowledge of the Company, is no other Person, has materially violated or breached, or committed any material default under, any Material Contract. To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (i) result in a material violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a material default or exercise any remedy under any Material Contract; (iii) give any Person the right to accelerate the maturity or performance of any Material Contract; or (iv) give any Person the right to cancel, terminate or modify any Material Contract. Between January 1, 2019 and the date of this Agreement, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company, other party to communication regarding any such Company Contract in actual or possible violation or breach of, or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentunder, any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Material Contracts. (a) Schedule 4.16(a) of Except for any Company Benefit Plan and those agreements and other documents filed as exhibits or incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 or filed or incorporated in any Company SEC Reports filed since January 1, 2022 and prior to the date hereof, neither the Company Disclosure Letter sets forth nor any of its Subsidiaries is a true and complete listparty to, as of bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each, whether or not filed with the date of this AgreementSEC, of:a “Material Contract”):
(i) each contract (other than this Agreementthat is a “material contract” within the meaning of Item 601(b)(10) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires of the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000SEC’s Regulation S-K;
(ii) that contains a provision, including (but not limited to) a non-compete or client or customer non-solicit requirement or an exclusivity or exclusive dealing provision, in each contract case that grants any right materially restricts the conduct of, or the manner or location of first refusal or right of first offer or that limits the ability of the Companyconducting, any Subsidiary line of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) business of the Company or any of its Subsidiaries (whether incurredor, assumedupon consummation of the Mergers, guaranteed of the Surviving Entity or secured any of its Subsidiaries) (excluding customary non-solicitation covenants contained in vendor agreements entered into in the ordinary course);
(iii) that (A) relates to the incurrence of indebtedness by the Company or any assetof its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions or (B) provides for the guarantee, support, assumption or endorsement by the Company or any of the Company’s Subsidiaries of, or any similar commitment by the Company or any of the Company’s Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other Person, in excess each case of clauses (A) and (B), in an outstanding principal amount of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries15,000,000 or more;
(iv) other than contracts entered into in the ordinary course that grants any right of businessfirst refusal, each contract under which the Company right of first offer or a Subsidiary similar right with respect to any material assets, rights or properties of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(viiv) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) relates to compete in any line of business or with any Person or geographic area;
(viii) each partnership, a joint venture, partnership, limited liability company agreement or strategic alliance other similar agreement to which the Company or a Subsidiary of the Company is a arrangement with any third party (other than any such agreement solely between or among the Company and its wholly owned Subsidiariesexcluding Community Reinvestment Act investments);
(ixvi) each contract between that relates to an acquisition, divestiture, merger or among the Company or any Subsidiary of the Company, on the one hand, similar transaction and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to under which the Company or any of its Subsidiaries is the indemnitorsubject to any material covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(avii) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is any of the benefits of or obligations will arise or be increased or accelerated by the occurrence of the execution and delivery of this Agreement, receipt of the Company Stockholder Approval or the announcement or consummation of any of the transactions contemplated by this Agreement, or under which a right of cancellation or termination will arise as a result thereof, 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, where such increase or acceleration of benefits, right of cancellation or termination or change in the calculation of value of benefits would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company;
(viii) that provides for material indemnification by the Company or any of its Subsidiaries will be required to pay feesof any Person, expenses except (A) for contracts entered into in the ordinary course of business and (B) as provided by the governing documents of the Company and its Subsidiaries;
(ix) that creates future payment obligations from the Company or other costs any of its Subsidiaries in excess of $50,000 following 1,000,000 per annum (other than (A) any such contracts which are terminable by the Effective Time; andCompany or any of its Subsidiaries on sixty (60) days, or less notice without any required payment or other conditions, other than the condition of notice, (B) extensions of credit, (C) other customary banking products offered by the Company or its Subsidiaries or (D) derivatives issued or entered into in the ordinary course of business);
(xiix) each “that grants to a Person any right, license, covenant not to sue or other right in Company Owned Intellectual Property (excluding (A) non-exclusive licenses, covenants not to sue or similar rights granted in the ordinary course and (B) employee agreements and contractor agreements that are consistent in all material contract” (as such term is defined in Item 601(b)(10respects with form agreements made available to Parent) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect or grants to the Company or any Subsidiary of its Subsidiaries a license, covenant not to sue or other right to any Intellectual Property (excluding employee agreements and contractor agreements that are consistent in all material respects with form agreements made available to Parent and licenses to shrink-wrap or click-wrap Software), in each case of this clause (x), that is material to the conduct of the businesses of the Company;
(xi) that provides for the sale of Personal Information, or the transfer of Personal Information for marketing purposes, by or on behalf of the Company or any of its Subsidiaries to any third party, in each case of this clause (xi), where the sale or transfer of Personal Information is material to the conduct of the businesses of the Company and its Subsidiaries, taken as a whole;
(xii) to which any officer, director, or employee of the Company or any of its Subsidiaries is a party or beneficiary (except with respect to loans to, or deposit or asset management accounts of, directors, officers and employees entered into in the ordinary course of business or with respect to routine banking relationships, compensation, business expense advancements, or reimbursements); or
(xiii) that is between the Company or any of its Subsidiaries and any Person beneficially owning five percent (5%) or more of the outstanding Company Common Stock.
(b) CollectivelyThe Company has made available to Parent prior to the date hereof true, the contracts set forth correct and complete copies of each Material Contract in Schedule 4.16(a) effect as of the Company Disclosure Letter are herein referred to as the “Company Contractsdate hereof.” Except
(c) In each case, except as would not reasonably be expected to havenot, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect on the Company, (i) each Company Material Contract is legala valid and legally binding agreement of the Company or one of its Subsidiaries, validas applicable, binding and to the Knowledge of the Company, the counterparty or counterparties thereto, is enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, (subject to the knowledge of the Company, each other party thereto, Bankruptcy and Equity Exception) and is in full force and effect, subject(ii) the Company and each of its Subsidiaries has duly performed all obligations required to be performed by it prior to the date hereof under each Material Contract, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, and, to the knowledge Knowledge of the Company, any counterparty or counterparties, is in breach of any other party provision of any Material Contract, and (iv) to the Knowledge of the Company, no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of the Company or any of its Subsidiaries under any such Material Contract or provide any party thereto with the right to terminate such Material Contract. Section 3.16(c) of the Company Contract in breach or default thereunder. Complete Disclosure Schedule sets forth a true and accurate copies of each Company Contract in effect complete list as of the date hereof of (including x) all amendments Material Contracts pursuant to which consents or waivers are or may be required and modifications(y) have been furnished all notices which are required to or otherwise made available be given, in each case, prior to Parentthe performance by the Company of this Agreement and the consummation of the Merger, the Second Step Merger, the Bank Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Premier Bancorp Inc), Merger Agreement (Columbia Banking System, Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 6.9 of the Company iGambit Disclosure Letter sets forth Schedule provides a true and complete list, as list of each of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company following contracts to which iGambit or any of its Subsidiaries is party other than this Agreement (collectively, the “iGambit Material Contracts”):
(i) All leases for real property used by iGambit or any of its Subsidiaries and all leases of personal property and any Contract affecting any right, title or interest in or to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000real property;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the CompanyAll Contracts with Persons who are Service Providers, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)and all iGambit Plans;
(iii) each contract relating Any Contract involving financing or borrowing of money, or evidencing indebtedness; any liability for borrowed money; any letters of credit; any obligation for the deferred purchase price of property in excess of $25,000; or guaranteeing in any way any Contract in connection with any Person;
(iv) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits;
(v) Any Contract with any Governmental Authority;
(vi) Any Contract with respect to outstanding Indebtedness the discharge, storage or removal of effluent, waste or pollutants;
(vii) Any Contract for the purchase or commitments sale of any iGambit Assets or guarantees in respect thereof) assets of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which business or for the Company option or a Subsidiary preferential rights to purchase or sell any iGambit Assets or assets of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(viiviii) each contract Any Contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) covenants not to compete in any line of business or with any Person in any geographical area or geographic area;
(viii) each partnershipthat would otherwise result in iGambit or any of its Subsidiaries being bound by, joint ventureor subject to, limited liability company any non-compete or strategic alliance agreement to which other restriction on the Company operation or a Subsidiary scope of its businesses, including the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)iGambit Business;
(ix) each contract between Any Contract related to the acquisition of a business or among the Company equity of any other Entity or any Subsidiary the sale of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company iGambit or any of its Subsidiaries or any of their respective “associates” the iGambit Assets or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 any assets of the Exchange Act) or any of the Company Manager, on the other handits Subsidiaries;
(x) each contract that obligates the Company Any other Contract which (i) provides for payment or performance by either party thereto having an aggregate value of $25,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, iGambit or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorand an Affiliate thereof;
(xi) each vendorAny proposed arrangement of a type that, supplier or consulting or similar contract not otherwise if entered into, would be a Contract described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xiiSection 6.9(a)(i) each “material contract” (as such term is defined in Item 601(b)(10through 6.9(a)(x) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyabove.
(b) CollectivelyTrue and complete copies of each written iGambit Material Contract and true and complete written summaries of each oral iGambit Material Contract (including all amendments, the contracts set forth in Schedule 4.16(asupplements, modifications and waivers thereto) of the Company Disclosure Letter are herein referred have been provided to as the “Company ContractsClinigence by iGambit.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company
(c) Each iGambit Material Adverse Effect, each Company Contract is legal, currently valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectand is enforceable by iGambit or its Subsidiaries, as to enforceabilityapplicable, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company accordance with its terms.
(d) Neither iGambit nor any of its Subsidiaries is in breach default, and no party has notified iGambit or default any of its Subsidiaries in writing that iGambit or any of its Subsidiaries is in default, under any Company Contract noriGambit Material Contract. No event has occurred, to the knowledge and no circumstance or condition exists, that might, with or without notice or lapse of time:
(i) result in a violation or breach of any of the Companyprovisions of any iGambit Material Contract;
(ii) give any Person the right to declare a default or exercise any remedy under any iGambit Material Contract;
(iii) give any Person the right to accelerate the maturity or performance of any iGambit Material Contract or to cancel, is terminate or modify any other party to iGambit Material Contract; or
(iv) otherwise have an iGambit Material Adverse Effect in connection with any such Company Contract in breach or default thereunder. Complete and accurate copies iGambit Material Contract.
(e) Neither iGambit nor any of each Company Contract in effect as its Subsidiaries has waived any of its rights under any iGambit Material Contract.
(f) The performance of the date hereof iGambit Material Contracts will not result in any violation of or failure by iGambit or any of its Subsidiaries to comply in all material respects with any Legal Requirement.
(g) The iGambit Material Contracts constitute all of the Contracts necessary to enable iGambit and its Subsidiaries to conduct the iGambit Business in the manner in which such iGambit Business is currently being conducted.
(h) The consummation of the Merger shall not result in iGambit or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its businesses, including all amendments and modifications) have been furnished to or otherwise made available to Parentthe iGambit Business.
Appears in 2 contracts
Sources: Merger Agreement (iGambit, Inc.), Merger Agreement (iGambit, Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 4.13 of the Company PubCo Disclosure Letter sets forth a true and complete listlist of each of the following Contracts to which, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company PubCo Entities or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);each, a “PubCo Material Contract”):
(ixi) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act) not otherwise SEC as determined as of the date of this Agreement, other than those agreements and arrangements described in this Section 4.16(aItem 601(b)(10)(iii)) with respect to PubCo;
(ii) each Contract (A) not to (or otherwise restricting or limiting the Company ability of the PubCo Entities or any of their respective Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of the PubCo Entities or any of their respective Subsidiaries to conduct business in any geographic area;
(iii) each Contract (other than any PubCo Benefit Plan) providing for or resulting in payments by the PubCo Entities or any of their respective Subsidiaries that exceeded annual payments by a PubCo Entity or any of their Subsidiaries that exceed $500,000;
(iv) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material PubCo Assets;
(v) all material Contracts (A) for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to any Intellectual Property) providing for or resulting in a payment in excess of $500,000 per year or (B) under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment in excess of $500,000, in each case of clause (A) and (B), other than agreements with employees, non-exclusive licenses granted to a PubCo Entity’s or its Subsidiaries’ customers and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any agreement with any director, officer or shareholder of PubCo or any Subsidiary that is required to be described under Item 404 of Regulation S-K of the CompanySEC in the PubCo SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $2,000,000;
(ix) any agreement for the disposition or acquisition by the PubCo Entities or any of their respective Subsidiaries, with material obligations of the PubCo Entities or any of their respective Subsidiaries (other than confidentiality obligations) remaining to be performed or material Liabilities of the PubCo Entities or any of their respective Subsidiaries continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to shareholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law; and
(xi) all material agreements with any Governmental Authority.
(b) Collectively, A true and complete copy of each PubCo Material Contract (including any related amendments) entered into prior to the contracts set forth date of this Agreement has been filed as an exhibit (by reference or otherwise) to a PubCo Annual Report on Form 20-F or disclosed by PubCo in Schedule 4.16(a) of a subsequent PubCo SEC Report or made available to the Company Disclosure Letter are herein referred prior to as the “Company Contracts.” Except as date of this Agreement. Each PubCo Material Contract is a valid and binding agreement of PubCo or its applicable Subsidiary, except where the failure to be valid and binding would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company PubCo Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected material to havePubCo, individually (i) neither PubCo or in such Subsidiary nor, to the aggregateKnowledge of PubCo, a Company Material Adverse Effectany other party, neither the Company nor any of its Subsidiaries is in breach of or default under any Company Contract norsuch PubCo Material Contract, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect (ii) as of the date hereof of this Agreement, there are no material disputes with respect to any such PubCo Material Contract and (including all amendments and modificationsiii) have been furnished as of the date of this Agreement, no party under any PubCo Material Contract has given written notice of its intent to terminate or otherwise made available seek a material amendment to Parentsuch PubCo Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Bruush Oral Care Inc.), Merger Agreement (Bruush Oral Care Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 4.15 of the Company Disclosure Letter Schedule sets forth a true and complete list, as all of the following Contracts to which the Company, the Purchased Companies or any of their Subsidiaries is a party or by which it is bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date of this Agreementhereof as permitted by or in compliance with Section 6.2 (collectively, of:
the "Material Contracts"): (i) each contract (other than this Agreement) that involves a pending Contracts with any current officer or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability director of the Company, any Subsidiary of the Company Purchased Companies or any of their respective Affiliates to ownSubsidiaries; (ii) Contracts with any labor union or association representing any employee of the Company, operate, sell, transfer, pledge the Purchased Companies or otherwise dispose any of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
their Subsidiaries; (iii) each contract relating Contracts pursuant to outstanding Indebtedness which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (or commitments or guarantees in respect thereofiv) Contracts for the sale of any of the Company assets of the Company, the Purchased Companies or any of its their Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course Ordinary Course of business, each contract under which Business or for the Company or a Subsidiary grant to any person of the Company has, directly or indirectly, made any advance, loan, extension preferential rights to purchase any of credit or capital contribution to, or other investment in, any Person its assets; (other than the Company or a Subsidiary v) joint venture agreements; (vi) Contracts containing covenants of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company Purchased Companies or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its their Subsidiaries (including Parent upon consummation of the Transactions) not to compete in any line of business or with any Person person in any geographical area or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement covenants of any other person not to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of compete with the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries Purchased Companies or any of their respective “associates” Subsidiaries in any line of business or “immediate family” members in any geographical area; (as such terms are defined in Rule 12b-2 and Rule 16a-1 of vii) Contracts relating to the Exchange Act) or of acquisition by the Company ManagerCompany, on the other hand;
(x) each contract that obligates the Company Purchased Companies or any of its their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to indemnify the borrowing of money; (ix) any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendordistributor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined used in Item 601(b)(10the Company SEC Documents), advertising, agency or manufacturer's representative Contract; (x) agreement of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) guarantee, support, assumption or endorsement of, or any similar commitment with respect to the Company Liability or Indebtedness of any other Person; (xi) trust indenture, mortgage, promissory note, loan agreement or (xii) other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any Subsidiary of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are otherwise material to the Company, the Purchased Companies and any of their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or made available to the Purchaser true and complete copies of all of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) written Material Contracts and written summaries of the Company Disclosure Letter material terms of all of the oral Material Contracts. All of the Material Contracts and other agreements are herein referred to as in full force and effect and are the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge obligation of the Company, each other party theretothe Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and is in full force similar laws affecting creditors' rights and effect, remedies generally and subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). None of the aggregateCompany, a Company Material Adverse Effect, neither the Company nor Purchased Companies or any of its their Subsidiaries is in breach or default in any material respect under any Company Contract Material Contract, nor, to the knowledge Knowledge of the Company, the Purchased Companies or any of their Subsidiaries, is any other party to any such Company Material Contract in breach or default thereunder. Complete and accurate copies of each Company Contract thereunder in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentany material respect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Metron Technology N V), Stock and Asset Purchase Agreement (Fsi International Inc)
Material Contracts. (a) Schedule 4.16(a) Section 3.15 of the Company Seller Disclosure Letter Schedule sets forth as of the date hereof a true and complete list, as list in all material respects of the date following Contracts to which Seller or any member of this Agreement, of:the Commercial Air Group is a party or is bound with respect to the Business (the “Material Contracts”):
(i) each contract any Contracts with an OEM relating to the purchase of new aircraft or aircraft engines (other than this Agreement) that involves a pending those contracts relating solely to delivered aircraft or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000delivered aircraft engines);
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)Lease Document;
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees any Contract containing any non-competition provision that limits in any material respect thereof) the ability of the Company members of the Commercial Air Group to engage in any business or compete with any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiariesperson;
(iv) any Contract material to the Business that grants any member of the Commercial Air Group an equity interest in a joint venture or partnership with any unaffiliated third party involving a sharing of profits or losses with such unaffiliated third party;
(v) any Contract, other than contracts entered into in the ordinary course of business, each a contract under which the Company or a Subsidiary with another member of the Company hasCommercial Air Group, directly for the issuance of any equity security or indirectlyother equity interest, or the conversion of any obligation, instrument or security into equity securities or other equity interests of, any member of the Commercial Air Group;
(vi) any employment agreements with any person involving an annual base compensation in excess of $400,000;
(vii) any Contract between (i) any member of the Commercial Air Group on the one hand and (ii) and any current or former director, executive officer or employee of any member of the Seller Group or Commercial Air Group on the other hand, that, in each case, requires a payment to such person in excess of $1,000,000;
(viii) any Contract relating to or evidencing third-party Indebtedness of the type described in clauses (a) or (c) of the definition of Indebtedness that has an aggregate outstanding principal amount in excess of $7,500,000;
(ix) any Contract pursuant to which any member of the Commercial Air Group has provided funds or made any advance, loan, extension of credit loan for borrowed money or capital contribution to, or made any other investment in, or assumed, guaranteed or agreed to act as surety with respect to (including any Person (so called take-or-pay or keepwell agreements), any Indebtedness, liability or obligation of, any person, other than the Company or a Subsidiary (A) any member of the CompanyCommercial Air Group or (B) a Seller Joint Venture, in each case in excess of US $7,500,000;
(x) any Contract for the (A) acquisition of property or assets by members of the Commercial Air Group; or (B) sale, transfer or disposition of properties or assets of the members of the Commercial Air Group, in either case, that has a purchase or sale price of more than $7,500,000, other than Contracts that involve the acquisition, sale, transfer or disposition of properties or assets where such acquisition, sale, transfer or disposition has occurred as of the date hereof, and other than any Contract described in clause (i);
(vxi) each contract that involves or constitutes an interest rate capany material Contract with a Governmental Entity, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of than any type, except for contracts entered into for bona fide hedging purposes;Contract described in clause (ii); and
(vixii) each employment contract to which the Company or a Subsidiary other than any Contract (A) of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company type described in clauses (i) through (xi) (or any of its Subsidiaries;
the exceptions thereto) or (viiB) each contract containing any non-compete, exclusivity terminable by Seller or similar type of provision that materially restricts the ability applicable member of the Company Commercial Air Group without penalty upon no more than 30 days’ notice, any Contract involving the performance of services by, or delivery or goods or materials to or by, any of its Subsidiaries (including Parent upon consummation member of the TransactionsCommercial Air Group with an expected amount of value in excess of $5,000,000 over the next twelve (12) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party month period (other than any such agreement solely Contract between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary a member of the CompanyCommercial Air Group, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary another member of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company ManagerCommercial Air Group, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company).
(b) CollectivelyThe Data Room contains true, accurate and complete copies of all Material Contracts (and any material amendments, supplements and modifications thereto), except for the contracts set forth OEM Contracts, true, accurate and complete copies of which have separately been made available to Purchaser in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable hard copy form in accordance with its terms on the Company and procedures of the applicable OEMs. For the avoidance of doubt, each of its Subsidiaries that OEM Contract constitutes a Material Contract hereunder. Each Material Contract is a legal, valid and binding obligation of each member of the Commercial Air Group which is party thereto and, to the knowledge Knowledge of the CompanySeller, each other party counterparty thereto, and is in full force and effect, subjectand neither such member of the Commercial Air Group, as nor to enforceabilitythe Knowledge of Seller, any other party thereto, is in breach of, or in default under, any such Material Contract, and no event has occurred that, with notice or lapse of time, or both, would constitute such a breach or default thereunder by the members of the Commercial Air Group, or, to Creditors’ Rights. Except as the Knowledge of Seller, any other party thereto, except for such failure to be valid, binding or in full force and effect and such breaches and defaults that have not been or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, be material to the knowledge operation of the Company, is any other party to any such Company Contract in breach or default thereunderBusiness. Complete and accurate copies of each Company Contract in effect as As of the date hereof (including all amendments and modifications) have hereof, no written notice of termination of any Material Contract has been furnished to given or otherwise made available to Parentreceived by any member of the Commercial Air Group.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Cit Group Inc)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, 2.16 contains an accurate list as of the date of this AgreementAgreement of all the Contracts, of:
(i) each contract together with all material amendments and supplements thereto, currently in effect of the following types to which the Company or a Subsidiary is a party or to which any of its assets or properties are subject (other than this AgreementLeases) that involves a pending (the “Material Contracts”):
(a) any collective bargaining agreement or contemplated mergerlabor agreement;
(b) any Contract with any officer or director of the Company or the Subsidiaries, business combinationor in each case, acquisitionany member of such Person’s immediate family (other than an agreement with respect to compensation) or any Person directly or indirectly owning, purchasecontrolling or holding with power to vote, sale 5% or divestiture that requires more of the fully-diluted equity interests of the Company or any of its Subsidiaries (other than any Contract between the Company and a Subsidiary or between a Subsidiary and another Subsidiary);
(c) any Contract or agreement purporting to dispose restrict or prohibit the Company or any Subsidiary from engaging or competing in the steelmaking business in any material respect;
(d) any Contract or agreement purporting to restrict or prohibit the Company or any Subsidiary from hiring or soliciting any individuals for employment outside the ordinary course of or acquire assets or properties business with a fair market value remaining term in excess of $25,000,000one year;
(iie) each contract any Contract that grants is material to the Business containing any “most favored nations” terms and conditions granted by the Company or any of its Subsidiaries or any put, call, exclusivity, right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment similar right granted by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(viif) each contract containing [Intentionally omitted.]
(g) any non-competeContract, exclusivity including any raw material, supply or similar type customer Contract which involves the payment or receipt of provision that materially restricts an amount in excess of $2,500,000 (over the ability course of twelve (12) months);
(h) any agreement, commitment or other Contract relating to Indebtedness of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaa Subsidiary;
(viiii) each partnership, joint venture, limited liability company or strategic alliance agreement to which any guarantee of any material obligation (other than a guarantee by the Company of a Subsidiary’s debts or a guarantee by a Subsidiary of the Company is a party (other than any such agreement solely between Company’s debts or among the Company and its wholly owned Subsidiariesanother Subsidiary’s debts);
(ixj) any Order, settlement or agreement with any Governmental Authority (other than Permits), in each contract between or among case, that is material to the Business;
(k) any Contract involving the sale of any business entered into by the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorhave a continuing indemnification obligation;
(xil) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) any Contract under which it is reasonably expected the Company or any of its Subsidiaries will be required has continuing material indemnification obligations to pay feesany third Person, expenses other than those entered into in the ordinary course of business consistent with past practices;
(m) agreements under which the Company has granted any Person registration rights;
(n) any partnership, joint venture, strategic alliance or other costs in excess of $50,000 following the Effective Timesimilar agreement; and
(xiio) any other Contract not made in the ordinary course of business that is material to the Business. The Company has made available to Purchaser a true and complete copy of each “Material Contract, together with all material contract” (as such term amendments and supplements thereto. Each Material Contract is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to valid and binding on the Company or any its applicable Subsidiary and, to the Knowledge of the Company.
(b) Collectively, is valid and binding on the contracts set forth other parties thereto, except, in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except each case, as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Except as set forth on Schedule 2.16, each Company Contract is legalas of the date hereof, valid, binding and enforceable in accordance with its terms on the Company and each of or its Subsidiaries applicable Subsidiary that is a party thereto to the Material Contract and, to the knowledge Knowledge of the Company, each the other party theretoparties thereto are not in material default or breach under any such Material Contract, and is in full force there are no pending claims affecting the Material Contracts as of which the Company and effectits Subsidiaries have written notice, subjectexcept where such default, as to enforceability, to Creditors’ Rights. Except as breach or claim would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Steel Dynamics Inc), Membership Interest Purchase Agreement (Ak Steel Holding Corp)
Material Contracts. (a) Schedule 4.16(aExcept for Contracts listed in Section 5.12(a) of the Company Parent Disclosure Letter sets forth a true and complete listor included as an exhibit to Parent's Form 10-K for the fiscal year ended December 31, 2014, as of the date of this Agreement, ofneither Parent nor any of its Subsidiaries is a party to or bound by any Contract:
(i) that is required to be filed as an exhibit to Parent's Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(ii) pursuant to which or with respect to which Parent or any of its Subsidiaries and any director, officer, or Affiliate of Parent or any of its Subsidiaries (excluding in each contract case the Company) are parties or beneficiaries;
(iii) that obligates Parent or any of its Subsidiaries to make non-contingent aggregate annual expenditures (other than this Agreementprincipal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within 90 days without material penalty to Parent or any of its Subsidiaries;
(iv) that involves contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of Parent or any of its Subsidiaries, or that otherwise restricts the lines of business conducted by Parent or any of its Subsidiaries or the geographic area in which Parent or any of its Subsidiaries may conduct business;
(v) that (A) is an agreement to which any Governmental Authority is a pending party or contemplated mergerunder which any Governmental Authority has any rights or obligations or (B) is intended to directly or indirectly benefits any Governmental Authority (including any subcontract or other Contract between Parent or any of its Subsidiaries and any contractor or subcontractor to any Governmental Authority);
(vi) which is an agreement which obligates Parent or any of its Subsidiaries to indemnify any past or present directors, business combinationofficers, acquisitiontrustees, purchase, sale employees or divestiture agents of Parent or any of its Subsidiaries pursuant to which Parent or any of its Subsidiaries is the indemnitor;
(vii) which constitutes Indebtedness of Parent or any of its Subsidiaries with a principal amount outstanding as of the date hereof greater than $1,000,000;
(viii) that is an employment agreement with any executive officer of Parent or any of its Subsidiaries;
(ix) which requires the Company Parent or any of its Subsidiaries to dispose of or acquire assets or properties (including any Parent Vessel) with a fair market value in excess of $25,000,0001,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(iix) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement Contract relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposestransaction;
(vixi) each employment contract to which that sets forth the Company operational terms of a material joint venture, partnership, limited liability company or a Subsidiary strategic alliance of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company Parent or any of its Subsidiaries;
(viixii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) constitutes a loan to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the CompanyParent) of the Company by Parent or any of its Subsidiaries or any in an amount in excess of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand$1,000,000;
(xxiii) each contract that obligates relating to any material ship-sales, memoranda of agreement or other vessel acquisition Contract for Newbuildings and secondhand vessels currently contracted for by Parent or other material Contracts with respect to Newbuildings and the Company or any of its Subsidiaries to indemnify any past or present directorsfinancing thereof, officersincluding performance guarantees, or employees of the Company or any of its Subsidiaries counter guarantees, refund guarantees, material supervision agreement, material plan verification services agreements, and future charters;
(xiv) pursuant to which the Company a Parent Vessel is leased or chartered by Parent to a Third Party;
(xv) that is a management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Parent Vessel involving annual payments in excess of $50,000, other than any such agreement or financial lease that is terminable by Parent or its Subsidiaries without fee or penalty upon 90 days’ or less prior notice; or
(xvi) that if breached or terminated could reasonably be expected to have a Parent Material Adverse Effect. Each Contract described in clauses (i) through (xvi) above to which Parent or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected the Company or any of its Subsidiaries will be required bound is referred to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each herein as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyParent Material Contract.”
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveas, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, each Company Parent Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company Parent and each of its Subsidiaries that is a party thereto and, to the knowledge of the CompanyParent, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as would not reasonably be expected to haveas, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, neither Parent and each of its Subsidiaries has performed all obligations required to be performed by it prior to the Company date hereof under each Parent Material Contract and, to the knowledge of Parent, each other party thereto has performed all obligations required to be performed by it under such Parent Material Contract prior to the date hereof. Neither Parent nor any of its Subsidiaries is in breach has received any claim, notice or other communication (whether oral or written) of any violation or default under any Company Contract norParent Material Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parenta Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Genco Shipping & Trading LTD), Merger Agreement (Baltic Trading LTD)
Material Contracts. (a) Schedule 4.16(aSection 3.11(a) of the Company Disclosure Letter sets forth contains a true and complete list, listing of the following contracts and other agreements to which Pecten as of the date of this AgreementAgreement is a party or to which the Assets are subject (each such contract or agreement, of:along with all amendments and supplements thereto, being referred to herein as a “Material Contract”):
(i) each contract (other than this Agreement) that involves a pending or contemplated mergercontracts, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000agreements and instruments representing Indebtedness for Borrowed Money and all guarantees thereof;
(ii) each contract that grants any right contracts containing covenants limiting the freedom of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates Pecten to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete engage in any line of business or compete with any Person or geographic areaoperate at any location;
(viiiiii) each partnershipprice swaps, joint venture▇▇▇▇▇▇, limited liability company futures or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)similar instruments;
(ixiv) each contract between or among the Company or any Subsidiary of the Companycontracts to which Pecten, on the one hand, and the Company Manager or any officer, director or an Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company ManagerPecten, on the other hand, is a party or is otherwise bound;
(v) contracts containing any preferential rights to purchase or similar rights relating to any Assets;
(vi) joint venture or partnership agreements, including any agreement or commitment to make any loan or capital contribution to any joint venture or partnership;
(vii) contracts relating to the acquisition or disposition by Pecten of any business (whether by acquisition or disposition of equity interests or assets) pursuant to which Pecten has or will have any remaining material obligation or liability or benefit;
(viii) contracts or agreements which, individually, require or entitle Pecten to make or receive payments of at least Five Hundred Thousand Dollars ($500,000) annually, provided that the calculation of the aggregate payments for any such agreement or contract shall not include payments attributable to any renewal periods or extensions for which Pecten may exercise a renewal or extension option in its sole discretion;
(ix) contracts relating to the storage, transportation, treating, sale, or purchase of hydrocarbons, or the provision of services related thereto; and
(x) each contract that obligates the Company licenses relating to Intellectual Property (whether as licensee or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xilicensor) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) than licenses with respect to software used or accessed by Pecten under a “shrink wrap,” “click wrap,” or “off the Company or any Subsidiary of the Companyshelf” software license that is generally commercially available on standard terms.
(b) CollectivelySubject to regulatory requirements of which SHLX has been informed, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise SPLC has made available to Parent.SHLX a correct and complete copy of each Material Contract listed on Section 3.11(a)
Appears in 2 contracts
Sources: Contribution Agreement (Shell Midstream Partners, L.P.), Contribution Agreement
Material Contracts. (a) Schedule 4.16(a) Except for contracts listed in Section 4.12 of the Company Disclosure Letter sets forth a true and complete listor filed as exhibits to the Company SEC Filings, as of the date of this Agreement, ofneither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(ii) obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $2,000,000 and is not cancelable within ninety (90) days without material penalty to the Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business;
(iv) other than the Company Charter and the Company Bylaws, is an agreement which obligates the Company or any Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary is the indemnitor, other than any operating agreements or property management agreements or any similar agreement pursuant to which a Company Subsidiary that is not wholly owned, directly or indirectly, by the Company provides such an indemnification to any such directors, officers, trustees, employees or agents in connection with the indemnification by such non-wholly owned Company Subsidiary of the Company or another Company Subsidiary thereunder;
(v) constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount as of the date hereof greater than $2,000,000;
(vi) would prohibit or materially delay the consummation of the Merger as contemplated by this Agreement;
(vii) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease or a ground lease affecting a Company Property) with a fair market value in excess of $25,000,000250,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Company Lease or any ground lease affecting any Company Property;
(iiviii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposestransaction;
(viix) each employment contract to which is a dealer manager agreement or similar Contract that contains terms that are materially different than the dealer manager agreements previously filed by the Company or a Subsidiary of with the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its SubsidiariesSEC;
(viix) each contract containing any non-competesets forth the operational terms of a joint venture, exclusivity partnership, limited liability company with a Company Third Party member or similar type of provision that materially restricts the ability strategic alliance of the Company or any of its Subsidiaries Company Subsidiary; or
(including Parent upon consummation of the Transactionsxi) constitutes a loan to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the CompanyCompany Subsidiary) of by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of its Subsidiaries Company Properties or any the funding of their respective “associates” or “immediate family” members (as such terms are defined improvements to Company Properties) in Rule 12b-2 and Rule 16a-1 an amount in excess of the Exchange Act) or $2,000,000. Each contract listed on Section 4.12 of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant Disclosure Letter to which the Company or any of its Subsidiaries Company Subsidiary is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (bound as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companydate hereof is referred to herein as a “Company Material Contract”.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveas, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of the Company or any Company Subsidiary, nor, to the knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Company Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default under any Company Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, neither . Neither the Company nor any Company Subsidiary has received notice of its Subsidiaries is in breach any violation or default under any Company Contract norMaterial Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to the knowledge of the Company, is any other party to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Real Estate Investments, Inc.)
Material Contracts. (a) Schedule 4.16(aSchedules 2.16(a)(i) through (xxiv) of the Company Disclosure Letter sets set forth a true and complete list, as list of each of the date of this Agreement, of:following Contracts to which any Group Company is a party that are in effect on the Agreement Date (the “Material Contracts”):
(i) each contract any Contract providing for payments by or to any Group Company (other than this Agreementor under which any Group Company has made or received such payments) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires in the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value period since such Group Company’s inception in excess an aggregate amount of $25,000,00025,000 or more;
(ii) each contract that grants any right dealer, distributor, referral or similar agreement, or any Contract providing for the grant of first refusal rights to reproduce, license, market, refer or right of first offer sell its products or that limits services to any other Person or relating to the ability advertising or promotion of the Company, Business or pursuant to which any Subsidiary of the Company or third parties advertise on any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment websites operated by any counterparty thereto)Group Company;
(iii) other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $25,000 or less, all licenses, sublicenses and other Contracts to which any Group Company is a party and pursuant to which the Company acquired or is authorized to use any Third-Party Intellectual Property Rights used in the development, marketing or licensing of the Company Products;
(iv) any license, sublicense or other Contract to which any Group Company is a party and pursuant to which any Person is authorized to use any Company Intellectual Property Rights;
(v) any license, sublicense or other Contract pursuant to which any Group Company has agreed to any restriction on the right of any Group Company to use or enforce any Company Intellectual Property Rights or pursuant to which any Group Company agrees to encumber, transfer or sell rights in or with respect to any Company Intellectual Property Rights;
(vi) any Contract providing for the development of any software, technology or Intellectual Property Rights, independently or jointly, either by or for any Group Company (other than employee invention assignment agreements and consulting agreements with Authors on the Company’s standard form of agreement, copies of which have been provided to Purchaser);
(vii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by any Group Company in the ordinary course of business consistent with past practice;
(viii) any Contract to license or authorize any third party to manufacture or reproduce any of the Company Products or Company Intellectual Property;
(ix) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each contract a “Government Contract”).
(x) (A) any joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person;
(xi) any separation agreement or severance agreement with any current or former employees under which the any Group Company has any actual or potential Liability;
(xii) any Contract for or relating to outstanding Indebtedness the employment or service of any director, officer, employee, consultant or beneficial owner of more than 5% of the total shares of Company Capital Stock or any other type of Contract with any of its officers, employees, consultants or beneficial owners of more than 5% of the total shares of Company Capital Stock, as the case may be, excluding (A) at-will employment offer letters, (B) consulting agreements that can be terminated by the Company on not more than 30 days’ notice, (C) Contracts providing for the grant or commitments issuance of equity (including all associated financing agreements) and (D) form Contracts entered into in connection with employment or guarantees in service, such as invention and assignment agreements;
(xiii) any Contract (A) pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect thereofto any of the Company Products or Company Intellectual Property, (B) containing any non-competition covenants or other restrictions relating to the Company Products or Company Intellectual Property, (C) that limits or would limit the freedom of the Company or any of its Subsidiaries successors or assigns or their respective Affiliates to (whether incurredI) engage or participate, assumedor compete with any other Person, guaranteed in any line of business, market or secured geographic area with respect to the Company Products or the Company Intellectual Property, or to make use of any Company Intellectual Property, including any grants by any assetGroup Company of exclusive rights or licenses or (II) in excess of $15,000,000sell, other than agreements solely among the Company and its wholly owned Subsidiariesdistribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services or (D) containing any “take or pay,” minimum commitments or similar provisions;
(ivxiv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity standstill or similar type of provision that materially restricts the ability agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or assets of any Group Company or otherwise seeking to influence or exercise control over any Group Company;
(xv) any Contracts relating to the membership of, or participation by, any Group Company in, or the affiliation of its Subsidiaries any Group Company with, any industry standards group or association;
(including Parent upon xvi) any settlement agreement with respect to any Legal Proceeding;
(xvii) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Stock Purchase or the other Transactions) to compete , either alone or in any line of business or combination with any Person or geographic areaother event;
(viiixviii) each partnershipany Contract or plan (including any stock option, joint ventureshare scheme, limited liability company merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or strategic alliance agreement to which the redemption of any shares of Company Capital Stock or any other securities of any Group Company or a Subsidiary of the Company is a party (any options, warrants, convertible notes or other than rights to purchase or otherwise acquire any such agreement solely between shares of stock, other securities or among the Company and its wholly owned Subsidiaries)options, warrants or other rights therefor;
(ixxix) each contract between or among the Company any Contract with any trade union, works council, labor union or any Subsidiary of the Company, on the one hand, and the Company Manager collective bargaining agreement or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of similar contract with its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handemployees;
(xxx) each contract that obligates any trust indenture, mortgage, promissory note, loan agreement or other Contract for the Company borrowing of money, any currency exchange, commodities or other hedging arrangement or any of its Subsidiaries to indemnify any past or present directors, officers, or employees leasing transaction of the Company or any of its Subsidiaries pursuant type required to which the Company or any of its Subsidiaries is the indemnitorbe capitalized in accordance with GAAP;
(xixxi) each vendorany Contract of guarantee, supplier surety, support, assumption or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of its Subsidiaries will be required to pay fees, expenses or any other costs Person;
(xxii) any Contract for capital expenditures in excess of $50,000 following in the Effective Timeaggregate;
(xxiii) any Contract pursuant to which any Group Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving expenditures in excess of $25,000 per annum; and
(xiixxiv) each “material contract” (as such term is defined in Item 601(b)(10) any Contract pursuant to which any Group Company has acquired a business or entity, or assets of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Subsidiary of the CompanyContract pursuant to which it has any ownership interest in any other Person.
(b) Collectively, the contracts set forth All Material Contracts are in Schedule 4.16(a) written form. Each Group Company has performed all of the Company Disclosure Letter are herein referred obligations required to as the “Company Contracts.” Except as would be performed by it and is entitled to all benefits under, and is not reasonably alleged to be expected in default in respect of, any Material Contract to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that which it is a party thereto andparty. Each of the Material Contracts is in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to any Group Company or to the knowledge of the Company, each with respect to any other party theretocontracting party, and is in full force and effectthat, subjectwith the giving of notice, as to enforceabilitythe lapse of time or the happening of any other event or condition, to Creditors’ Rights. Except as would not reasonably be expected to have, individually (i) become a default or in the aggregate, a Company Material Adverse Effect, neither the Company nor any event of its Subsidiaries is in breach or default under any Material Contract or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of any Group Company under any Material Contract noror (D) the right to cancel, terminate or modify any Material Contract. No Group Company has received any notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. No Group Company has any Liability for renegotiation of Government Contracts. True, correct and complete copies of all Material Contracts have been provided to Purchaser at least three Business Days prior to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentAgreement Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Grail, Inc.), Stock Purchase Agreement (Grail, Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 4.13 of the Company PubCo Disclosure Letter sets forth a true and complete listlist of each of the following Contracts to which, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company PubCo Entities or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);each, a “PubCo Material Contract”):
(ixi) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act) not otherwise SEC as determined as of the date of this Agreement, other than those agreements and arrangements described in this Section 4.16(aItem 601(b)(10)(iii)) with respect to PubCo;
(ii) each Contract (A) not to (or otherwise restricting or limiting the Company ability of the PubCo Entities or any of their respective Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of the PubCo Entities or any of their respective Subsidiaries to conduct business in any geographic area;
(iii) each Contract (other than any PubCo Benefit Plan) providing for or resulting in payments by the PubCo Entities or any of their respective Subsidiaries that exceeded annual payments by a PubCo Entity or any of their Subsidiaries that exceed $250,000;
(iv) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material PubCo Assets;
(v) all material Contracts (A) for the granting or receiving of a license, sublicense or franchise (in each case, including any such Contracts relating to any Intellectual Property) providing for or resulting in a payment in excess of $250,000 per year or (B) under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment in excess of $250,000, in each case of clause (A) and (B), other than agreements with employees, non-exclusive licenses granted to a PubCo Entity’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any agreement with any director, officer or stockholder of PubCo or any Subsidiary that is required to be described under Item 404 of Regulation S-K of the CompanySEC in the PubCo SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(ix) any agreement for the disposition or acquisition by the PubCo Entities or any of their respective Subsidiaries, with material obligations of the PubCo Entities or any of their respective Subsidiaries (other than confidentiality obligations) remaining to be performed or material Liabilities of the PubCo Entities or any of their respective Subsidiaries continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law; and
(xi) all material agreements with any Governmental Authority.
(b) CollectivelyA true and complete copy of each PubCo Material Contract (including any related amendments) entered into prior to the date of this Agreement has been filed as an exhibit (by reference or otherwise) to a PubCo Annual Report on Form 10-K, the contracts set forth or disclosed by PubCo in Schedule 4.16(a) of a subsequent PubCo SEC Report or made available to the Company Disclosure Letter are herein referred prior to as the “Company Contracts.” Except as date of this Agreement. Each PubCo Material Contract is a valid and binding agreement of PubCo or its applicable Subsidiary, except where the failure to be valid and binding would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company PubCo Material Adverse Effect. Except as would not, each Company Contract be material to PubCo, (i) neither PubCo or such Subsidiary nor, to the Knowledge of PubCo, any other party, is legalin breach of or default under any such PubCo Material Contract, valid(ii) as of the date of this Agreement, there are no material disputes with respect to any such PubCo Material Contract, (iii) as of the date of this Agreement, there are no material Liabilities incurred under PubCo Material Contracts binding and enforceable in accordance with its terms on the Company and each PubCo or any of its Subsidiaries that is a party thereto and, resulted from the breach or failure to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither perform by the Company nor or any of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect (iv) as of the date hereof (including all amendments and modifications) have been furnished of this Agreement, no party under any PubCo Material Contract has given written notice of its intent to terminate or otherwise made available seek a material amendment to Parentsuch PubCo Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Avalon GloboCare Corp.), Agreement and Plan of Merger (Avalon GloboCare Corp.)
Material Contracts. (a) Schedule 4.16(aSection 3.12(a) of the Company Seller Disclosure Letter sets forth a true correct and complete list, list as of the date hereof of this Agreementthe following Contracts (excluding, of:for the avoidance of doubt, any Seller Benefit Plans and Acquired Company Benefit Plans) to which an Acquired Company (or another Seller Business Group Member) is bound (the Contracts required to be set forth on Section 3.12(a) of the Seller Disclosure Letter, collectively, the “Material Contracts”):
(i) each contract any Contract pursuant to which the Acquired Companies may be entitled to receive or obligated to pay more than $100,000,000 in any fiscal year;
(ii) any Contract relating to the creation, incurrence, assumption or guarantee of any Indebtedness (excluding Indebtedness of the Egypt JV) in excess of $50,000,000 or which places an Encumbrance (other than this Agreementa Permitted Encumbrance) on any material assets of the Acquired Companies;
(iii) any Contract that involves provides for any “earn-out” or similar payment by any Acquired Company that could result in payments in excess of $10,000,000;
(iv) any Contract that provides for the establishment or operation of any legal partnership, joint venture, or similar arrangement, including Contracts with respect to the Principal Minority Interests and with the Principal JV Entities;
(v) any Contract with (A) a Material Customer pursuant to which such Material Customer pays amounts in excess of $25,000,000 on an annual basis to the Business or (B) a Material Supplier pursuant to which the Business pays amounts in excess of $25,000,000 on an annual basis to such Material Supplier;
(vi) any Contract since August 31, 2018 that resolves or settles any pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties threatened Legal Proceeding (A) with a fair market value in excess of $25,000,000;
5,000,000 or (iiB) each contract that grants provides for any right of first refusal ongoing injunctive or right of first offer or other non-monetary relief that limits is material to the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000Business, other than agreements solely among the Company customary confidentiality, release and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than atnon-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiariesdisparagement obligations;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the an Acquired Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaLabor Agreement;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which any factoring arrangement involving the Company or a Subsidiary transfer of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)receivables;
(ix) each contract any Leases;
(x) any Shared Contract (or group of Shared Contracts) (A) pursuant to which a Seller Business Group Member may be entitled to receive, or obligated to pay, in excess of $10,000,000 in any fiscal year or (B) that is otherwise material to the Acquired Companies or the Business;
(xi) any Affiliate Agreement, and any Contract between or among the Company or any Subsidiary of the an Acquired Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company ManagerJV Entity, on the other hand, in each case that will survive the Closing and (A) pursuant to which a Seller Business Group Member may be entitled to receive or obligated to pay in excess of $10,000,000 in any fiscal year or (B) that is otherwise material to the Acquired Companies or the Business;
(xxii) each contract any Contract that obligates restricts in any material respect the Company ability of an any Seller Business Group Member or the Business to compete in any business or with any Person in any geographical area or which includes “most favored nation”, exclusive relations or non-solicitation clauses for the benefit of its Subsidiaries to indemnify any past Person other than Seller or present directors, officers, or a Seller Business Group Member (excluding customary provisions for the non-solicitation of employees entered into in commercial contracts in the ordinary course of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorbusiness);
(xixiii) each vendorany Contract that relates to the disposition or acquisition of any assets in a single transaction or series of related transactions, supplier for aggregate consideration in excess of $10,000,000, by any Acquired Company, with obligations remaining to be performed or consulting or similar contract not otherwise described in this Section 4.16(a) that liabilities continuing after the date hereof (other than customary access and confidentiality obligations), excluding (A) cannot be voluntarily terminated pursuant Contracts related to its terms within sixty (60) days after the Effective Time dispositions and acquisitions of inventory and (B) under which it is reasonably expected dispositions and acquisitions of equipment in the ordinary course of business; and
(xiv) any Contract that requires any unsatisfied capital commitment or capital expenditure (or series of capital expenditures) by any Acquired Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in an amount in excess of $50,000 following 25,000,000 during the Effective Time; and
(xii) each “material contract” (as term of such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company Contract, understanding or any Subsidiary of the Companyundertaking.
(b) Collectively, the contracts set forth in Schedule 4.16(a) Seller has made available to Buyer accurate and complete copies of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company each Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ RightsContract. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Business Material Adverse Effect, neither the Company nor any of its Subsidiaries (i) each Material Contract is in breach full force and effect and is valid, binding and enforceable against an Acquired Company (or default under any Company Contract norother Seller Business Group Member, as applicable) that is a party to such Material Contract, and, to Seller’s Knowledge, each other party thereto in accordance with its terms, subject to the knowledge Enforceability Limitations and (ii) none of the CompanyAcquired Companies (or other Seller Business Group Member, is as applicable), nor to Seller’s Knowledge, any other party thereto, is in default, violation, or breach under any Material Contract to which it is a party. No event has occurred that has or, with notice or the passage of time or both, would (A) constitute a default, violation or breach by any such Acquired Company (or other Seller Business Group Member, as applicable) or, to Seller’s Knowledge, any other party thereto, or (B) result in a right of termination by any counterparty, in each case under any Material Contract except in breach or default thereundereach case, as would not reasonably be expected to have a Business Material Adverse Effect. Complete and accurate copies of each Company Contract in effect as As of the date hereof (including all amendments of this Agreement, no Seller Business Group Member has received written notice of termination or cancellation of any Material Contract, and modifications) have no party to any Material Contract has provided written or, to Seller’s Knowledge, oral notice threatening exercise of any termination rights with respect thereto or of any material dispute with respect to any Material Contract. For the purposes of this Section 3.12(b), the term “Material Contract” shall be deemed to include any Contract that would qualify as a Material Contract if it had been furnished entered into prior to or otherwise made available to Parentthe date of this Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Amerisourcebergen Corp), Share Purchase Agreement (Walgreens Boots Alliance, Inc.)
Material Contracts. (a) Schedule 4.16(a) Except for this Agreement, Contracts filed as exhibits to the Company SEC Documents or as set forth in Section 3.20 of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to any of the following Contracts which are currently in force or under which the Company has continuing liabilities or obligations:
(i) each contract any “material contract” (other than this Agreementas such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act or that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires would be required to be disclosed under Item 404 of Regulation S-K under the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000Securities Act);
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely Contract between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate affiliate (other than a wholly wholly-owned Subsidiary of the Company) of the Company (or of any Subsidiary of its Subsidiaries the Company) or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 2b-2 and Rule 16a-1 6a-1 of the Exchange Act) or of the Company Manager), on the other hand, including any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(iii) any Contract that imposes any restriction on the right or ability of the Company or any of its Subsidiaries to compete (or that following the Effective Time will restrict the ability of Parent and its Subsidiaries (other than the Company and its Subsidiaries) to compete) with any other person in any line of business, therapeutic area or geographic region or that contains any standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire or dispose of the securities of another person;
(iv) any Contract that obligates the Company or any of its Subsidiaries (or following the Effective Time, obligates Parent or its Subsidiaries (other than the Company and its Subsidiaries)) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” or similar covenants;
(v) any material licensing agreement (other than commercial agreements which include licenses for the use of trademarks of the Company or any of its Subsidiaries) that contains indemnities or other obligation including “earnout” or other contingent payment obligations that would reasonably be expected to result in the receipt or making of future payments in excess of $250,000 in the twelve (12)-month period following the date hereof;
(vi) any Company Collective Bargaining Agreement to which the Company or a Company Subsidiary is a party;
(vii) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $250,000;
(viii) any Contract that grants any right of first refusal, right of first offer or similar right to a third party (including stockholders of the Company) with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(ix) any Contract that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(x) each contract other than arrangements entered into in the ordinary course of business, (A) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries, and (B) any strategic alliance, collaboration, co-promotion or research and development project Contract, which, in the case of clause (B), is material to the Company and its Subsidiaries, taken as a whole;
(xi) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to (A) make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) make loans to the Company or any of its Subsidiaries, (C) pledge capital stock or other equity interests of the Company or prohibits the issuance of any guarantee or (D) grant liens on the property of the Company or any of its Subsidiaries;
(xii) any Contract that obligates the Company or any of its Subsidiaries to indemnify make any past loans, advances or present directorscapital contributions to any person in excess of $250,000 individually or $1,000,000 in the aggregate in the next twelve (12) months;
(xiii) any settlement agreement (A) involving more than $50,000 or (B) not entered into in the ordinary course of business, officers, or employees in each case with a former employee of the Company or any of its Subsidiaries pursuant or an independent contractor in connection with the cessation of such employee’s or independent contractor’s employment;
(xiv) any Contract that requires the Company, or any successor, to, or acquirer of the Company, to which make any payment to another Person as a result of a change of control of the Company or gives another Person a right to receive or elect to receive payment from the Company in the event of a change of control of the Company;
(xv) any Contract that requires or may require (A) any severance, termination, tax gross-up or similar payment in excess of $250,000, (B) any bonus, deferred compensation or similar payment in excess of $250,000 or (C) granting or accelerating the vesting of, or otherwise modify, any equity award agreement other than accelerated vesting under the Company Stock Plans; and
(xvi) any Contract (A) granting the Company or any of its Subsidiaries is any right to use any (1) Intellectual Property directly relating to the indemnitor;
Company Products or (xi2) material Intellectual Property (other than Intellectual Property covered by clause (A)(1)), in each vendorcase, supplier or consulting or similar contract not otherwise described other than licenses in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and respect of commercially available software, (B) under pursuant to which it the Company or one of its Subsidiaries grants any third person the right to use (except pursuant to material transfer agreements), enforce or register any (1) Intellectual Property directly related to the Company Products, or (2) material Intellectual Property (other than Intellectual Property covered by clause (B)(1)), in each case that is reasonably expected owned by the Company or any of its Subsidiaries, including any license agreements, coexistence agreements and covenants not to ▇▇▇ or (C) restricting the right of the Company or its Subsidiaries will be required to pay feesuse, expenses register, transfer, license, distribute or other costs in excess of $50,000 following the Effective Time; and
(xii) each “enforce any material contract” (as such term Intellectual Property that is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to owned by the Company or any Subsidiary of its Subsidiaries. All contracts of the Companytypes referred to in clauses (i) through (xvii) above (whether or not set forth on Section 3.20 of the Company Disclosure Schedule) are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement.
(b) Collectively, Neither the contracts set forth in Schedule 4.16(a) Company nor any Subsidiary of the Company Disclosure Letter are herein referred to as is in material breach of or default under the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a terms of any Company Material Adverse EffectContract and, each to the knowledge of the Company, no other party to any Company Material Contract is legal, valid, in material breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding and enforceable in accordance with its terms on obligation of the Company and each or the Subsidiary of its Subsidiaries the Company that is a party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, subject, as subject to enforceability, to Creditors’ Rightsthe Enforceability Exceptions. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norThere are no material disputes pending or, to the knowledge of the Company, is threatened with respect to any Company Material Contract. Neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any such Company Material Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to terminate for default, convenience or otherwise made available to Parentany Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Endologix Inc /De/), Merger Agreement (TriVascular Technologies, Inc.)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a There have been made available to Parent, its affiliates and their representatives true and complete list, as copies of all of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the following contracts to which Company or any of its Subsidiaries to dispose is a party or by which any of them is bound (collectively, the "Material Contracts"): (i) contracts with any current officer or acquire assets or properties with a fair market value in excess director of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose its Subsidiaries; (ii) contracts for the sale of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the assets of Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts relating to non-operating property or entered into in the ordinary course of business, each contract under which business or for the Company or a Subsidiary of the Company has, directly or indirectly, made grant to any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction person of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract preferential rights to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or purchase any of its Subsidiaries;
assets other than inventory in the ordinary course of business; (viiiii) each contract contracts containing any non-compete, exclusivity or similar type covenants of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) not to compete in any line of business or with any Person person in any geographical area or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement covenants of any other person not to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the compete with Company or any of its Subsidiaries in any line of business or in any geographical area; (iv) material indentures, credit agreements, mortgages, promissory notes, and all contracts relating to the borrowing of their respective “associates” money; and (v) all other agreements, contracts or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 instruments entered into outside of the Exchange Act) or ordinary course of business and which, in the reasonable opinion of Company, are material to Company. The Company has discussed with Parent the Company's purchase orders for raw materials (including cotton and polyester), supplies, expense items, and equipment, and the purchase orders from the Company's customers as well as the Company's acknowledgments of those orders, but the Company has not provided copies of all of these documents to Parent. Except as set forth on Schedule 4.1(p), all of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter Material Contracts are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effecteffect and are the legal, valid and binding obligation of Company and/or its Subsidiaries, enforceable against them in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to Creditors’ Rightsgeneral principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Except as would not reasonably be expected to have, individually or in set forth on Section 4.1(p) of the aggregate, a Company Material Adverse EffectDisclosure Schedule, neither the Company nor any of its Subsidiaries Subsidiary is in breach or default in any material respect under any Company Material Contract nor, to the knowledge of the Company, is any other party to any such Company Material Contract in breach or default thereunder. Complete and accurate copies of each Company Contract thereunder in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentany material respect.
Appears in 2 contracts
Sources: Merger Agreement (Pillowtex Corp), Merger Agreement (Fieldcrest Cannon Inc)
Material Contracts. (a) Schedule 4.16(aExcept for contracts listed in Section 4.18(a) of the Company Disclosure Letter sets forth a true and complete listor filed as exhibits to the Company SEC Documents, as of the date of this Agreement, ofneither Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract is required to be filed as an exhibit to the Company Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act;
(ii) obligates Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than this Agreementprincipal and/or interest payments or the deposit of other reserves with respect to debt obligations) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of its Subsidiaries business or geographic area that restricts the business of Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by Company or any Company Subsidiary or the geographic area in which Company or any Company Subsidiary may conduct business, except for radius restrictions that may be contained in Company Leases entered into in the ordinary course of business consistent with past practice;
(iv) is an agreement that obligates Company or any Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of Company or any Company Subsidiary pursuant to which Company or a Company Subsidiary is the indemnitor;
(v) constitutes an Indebtedness obligation of Company or any Company Subsidiary with a principal amount as of the date hereof greater than $1,000,000;
(vi) requires Company or any Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease or a ground lease affecting any Company Property) with a fair market value in excess of $25,000,0001,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction, except for any Company Lease or any ground lease affecting any Company Property;
(iivii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areatransaction;
(viii) each partnership, sets forth the operational terms of a joint venture, partnership, limited liability company with a Company Third Party member or strategic alliance agreement to which the of Company or a Subsidiary of the any Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)Subsidiary;
(ix) each contract between or among the Company or constitutes a loan to any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate Person (other than a wholly owned Subsidiary of the CompanyCompany Subsidiary) of the by Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of its Subsidiaries Company Properties or any the funding of their respective “associates” or “immediate family” members (as such terms are defined improvements to Company Properties) in Rule 12b-2 and Rule 16a-1 an amount in excess of the Exchange Act) or of the Company Manager, on the other hand$1,000,000;
(x) each contract that obligates the constitutes an agreement under which Company or any a Company Subsidiary has purchased or sold real property and has uncompleted financial obligations in excess of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;$500,000; or
(xi) each vendorrequires payment of commissions (including leasing commissions on brokerage fees) or Tenant Improvement costs, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses allowances or other costs concessions in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company500,000.
(b) Collectively, Each contract in any of the contracts categories set forth in Schedule 4.16(aSection 4.18(a) of the to which Company Disclosure Letter are herein or any Company Subsidiary is a party or by which it is bound is referred to herein as the a “Company ContractsMaterial Contract.” ”
(c) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the Knowledge of Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of Company or any Company Subsidiary, nor, to the Knowledge of Company, any other party thereto, is in material breach or violation of, or default under, any Company Material Contract, and no event has occurred that, with notice or lapse of time or both, would constitute a violation or breach of, or default under, any Company Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, neither the . Neither Company nor any Company Subsidiary has received notice of its Subsidiaries is in breach any violation of or default under any Company Contract norMaterial Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to the knowledge of the Company, is any other party to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Inland Diversified Real Estate Trust, Inc.), Merger Agreement (Kite Realty Group Trust)
Material Contracts. (a) Except as set forth on Schedule 4.16(a) 3.13 of the Company Disclosure Letter sets forth a true and complete listLetter, as of the date hereof neither the Company nor any of this Agreementits subsidiaries is a party to or bound by any lease, of:agreement, or other contract or legally binding contractual right or obligation of a type described below (collectively, "Company Material Contracts"):
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties written employment agreement with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) employee of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) subsidiaries providing for annual base compensation in excess of $15,000,000, other than agreements solely among 100,000 per year;
(ii) any collective bargaining agreement with any labor union covering the employees of the Company or any of its subsidiaries;
(iii) any contract that would be required to be filed by the Company or any of its subsidiaries with the Securities and Exchange Commission (the "SEC") as exhibits to an Annual Report on Form 10-K if the Company or any of its wholly owned Subsidiariessubsidiaries had securities registered under the 1934 Act;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets that requires aggregate future payments outside the ordinary course of business in excess of $2,000,000, excluding expenditures for inventory and raw materials relating to the fabrication or sale of equipment and parts in the ordinary course of business;
(v) any indenture, mortgage, loan, credit, sale-leaseback, guarantee, or other than contracts agreement under which the Company or any of its subsidiaries has borrowed money in excess of $2,500,000 or issued, or otherwise become obligated in connection with, any note, bond, indenture, security interest, or other evidence of indebtedness for borrowed money, sold and leased back assets, or guaranteed indebtedness for money in excess of $2,500,000 borrowed by others (excluding hedge, swap, exchange, or similar agreements entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or any agreement that constitutes a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to lease under which the Company or any of its Subsidiaries subsidiaries is the indemnitor;
(xi) each vendorlessor or lessee of real or personal property, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after by the Effective Time Company or a subsidiary, as the case may be, without penalty upon not more than 180 calendar day's notice and (B) involves an annual base rental in excess of $500,000, excluding leases under which it is reasonably expected the Synthetic Leases and leases of compressors and related equipment to customers in the ordinary course of business; or
(vii) any other agreement not referenced in subsections (i) through (vi) of this Section 3.13(a) that creates or imposes non-competition obligations on the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companysubsidiaries.
(b) Collectively, the contracts Except as set forth in on Schedule 4.16(a) 3.13 of the Company Disclosure Letter, each Company Material Contract listed on Schedule 3.13 of the Company Disclosure Letter are herein referred to is a valid and binding obligation of the Company or a subsidiary, as the “case may be, enforceable against the Company Contracts.” or the subsidiary, as the case may be, in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general application with respect to creditors, (ii) general principles of equity, and (iii) the power of a court to deny enforcement of remedies generally based upon public policy. Except as would set forth on Schedule 3.13 of the Company Disclosure Letter, the Company and its subsidiaries have, performed all obligations required to be performed by them through the date hereof under the Company Material Contracts listed on Schedule 3.13 of the Company Disclosure Letter, other than any such obligations the failure of which to perform are not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legaland are not (with or without the lapse of time or the giving of notice, validor both) in breach or default in any respect thereunder, binding and enforceable except in accordance with its terms on the Company and each of its Subsidiaries any such case for such breaches or defaults that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would are not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Universal Compression Inc), Merger Agreement (Universal Compression Inc)
Material Contracts. (a) Schedule 4.16(a) Except for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 3.21 of the Company Disclosure Letter sets forth a true and complete listSchedules, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (excluding any Company Benefit Plan) that:
(i) would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) contains a non-compete, non-solicit, exclusivity or similar restriction that materially restricts the conduct of any line of business by the Company or any of its Affiliates or the solicitation of any business from any third party or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to engage in any line of business or in any geographic region or to solicit any business from any third party;
(iii) contains a non-solicit of the employees of any entity or similar restriction that materially restricts solicitation of management-level or professional prospective hires or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to solicit the employment or services of any management-level or professional prospective hire (in each contract (case, other than this Agreementcustomary non-solicitation provisions included in non-disclosure agreements);
(iv) that involves is a pending settlement, consent or contemplated merger, business combination, acquisition, purchase, sale or divestiture similar agreement that requires would require the Company or any of its Subsidiaries to dispose pay consideration of or acquire assets or properties with a fair market value in excess more than $500,000 after the date of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer this Agreement or that limits the ability contains any material continuing obligations of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(v) that includes a material indemnification obligation of the Company or any of its Subsidiaries which was granted outside of the Ordinary Course of Business;
(vi) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiary could be required to sell, as applicable, any equity interests of any person or material amount of assets;
(vii) that provides any current employees, officers or directors of the Company or any Company Subsidiary with annual base compensation in excess of $275,000, other than Contracts that are terminable without penalty or notice or employment Contracts entered into on standard Governmental Entity forms;
(viii) is a Contract that involves the payment or delivery of cash or other consideration or minimum purchase obligations (by or to the Company or any Company Subsidiary) in an amount or having a value in excess of $5,000,000 in the aggregate, or contemplates or involves the performance of services (by or for the Company or any Company Subsidiary) having a value in excess of $5,000,000 in the aggregate;
(ix) is a Company Real Property Lease pursuant to which the Company or any of its Subsidiaries leases real property that is material to the business of the Company or any of its Subsidiaries;
(x) is a Contract providing for the purchase of goods or services or the development or construction of, or additions or expansions to, any property or equipment under which the Company or any Company Subsidiary has, or expects to incur, costs or obligations in excess of $5,000,000 in the aggregate;
(xi) that is material and obligates the Company or any Company Subsidiary, or will obligate the Surviving Corporation, to provide a party with “most favored nation” or “most favored customer” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(xii) provides for the formation, creation, operation, management or control of any material joint venture, partnership, strategic alliance, collaboration or other similar arrangement with a third party;
(xiii) is a Contract relating to any material currency or other hedging arrangement;
(xiv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries or any guaranty of such obligations or guarantee of obligations of any Person that is not the Company or a Subsidiary (other than indebtedness among the Company and/or any of its Subsidiaries), in each contract containing case in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(xv) provides for the acquisition or disposition by the Company or any non-competeof its Subsidiaries of any business (whether by merger, exclusivity sale of stock, sale of assets or similar type otherwise), or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of provision that materially the Company of future payments (including “earnout” or other material contingent payment obligations) in excess of $1,000,000, in each case, except for purchases and sales of goods, services or inventory in the Ordinary Course of Business;
(xvi) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $500,000;
(xvii) limits or restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation to declare or pay dividends or make distributions in respect of the Transactions) to compete in any line of business their capital stock, partner interests, membership interests or with any Person or geographic areaother equity interests;
(viiixviii) each partnership, joint venture, limited liability company or strategic alliance agreement pursuant to which the Company or a Subsidiary any of the Company Subsidiaries receives from any third party a license or similar right to any Intellectual Property that is a party (material to the Company, other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)licenses with respect to software that is generally commercially available;
(ixxix) each contract between or among that is a Contract entered into outside of the Ordinary Course of Business, pursuant to which the Company or any Subsidiary of its Subsidiaries is a party, or is otherwise bound, and the contracting counterparty of which is a Governmental Entity; or
(xx) that is a Contract (or form thereof and a list of the Companyparties thereto) between the Company or any Company Subsidiary, on the one hand, and the Company Manager or any officer, director or Affiliate affiliate (other than a wholly wholly-owned Subsidiary of the CompanyCompany Subsidiary) of the Company or any of its Subsidiaries Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager), on the other hand;
hand (x) each contract other than any Contract that obligates the is a Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees Benefit Plan). Each Contract of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise type described in clauses (i) – (xx) of this Section 4.16(a3.21(a) that (A) cannot be voluntarily terminated pursuant is referred to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the herein as a “Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyMaterial Contract”.
(b) Collectively, Neither the contracts set forth in Schedule 4.16(a) Company nor any Subsidiary of the Company Disclosure Letter are herein referred to as is in material breach of or material default under the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a terms of any Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on Contract. To the Company and each of its Subsidiaries that is a party thereto and, to the knowledge Knowledge of the Company, as of the date of this Agreement, no other party to any Company Material Contract is in material breach of or material default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and to the Knowledge of the Company, of each other party thereto, and is in full force and effect, subjectsubject to the Enforceability Exceptions, except as to enforceability, to Creditors’ Rights. Except as would not or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither be material to the Company nor or any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Material Contracts. (a) Schedule 4.16(a) For all purposes of the Company Disclosure Letter sets forth a true and complete list, as of the date of under this Agreement, ofa “Material Contract” means any oral or written:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise , other than those agreements and arrangements described in this Section 4.16(aItem 601(b)(10)(iii)) with respect to Company and its Subsidiaries, taken as whole;
(ii) Contract (in each case, under which Company or any of its Subsidiaries has continuing obligations) with any officer, director or employee of Company or any of its Subsidiaries or member of the Company Board providing for (A) an annual base salary in excess of $200,000, (B) material severance or termination pay liabilities of Company or any of its Subsidiaries related to termination of employment or (C) indemnification by Company or any of its Subsidiaries of any officer, director or employee of Company or any of its Subsidiaries;
(iii) Benefit Plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the Merger or the value of any of the benefits of which will be calculated on the basis of the Merger;
(iv) Contract relating to or evidencing (A) Indebtedness in excess of $10,000,000, other than loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business consistent with past practice and equipment leases entered into in the ordinary course of business or (B) Liens upon any material part of the owned assets or owned properties of Company and its Subsidiaries, taken as a whole;
(v) Contract pursuant to which Company or any of its Subsidiaries has guaranteed any obligations or liabilities (whether absolute, accrued, contingent or otherwise) of any other Person, which guarantee obligation exceeds $1,500,000, other than guarantees by Company for obligations of its wholly owned Subsidiaries;
(vi) Any limited liability company agreement, partnership, joint venture or other similar Contract relating to the formation, creation, operation or management of any limited liability company, partnership or joint venture, other than any such limited liability company, partnership or joint venture that is a wholly owned Subsidiary of Company;
(vii) Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments that would reasonably be expected to be in excess of $2,000,000 during any twelve-month period;
(viii) Contract that (A) limits or purports to limit in any material respect the ability of Company or any of its Affiliates to compete in any line of business or with any Person or in any geographic area or during any period of time or to develop, market, sell, distribute or otherwise exploit business of Company, (B) grants exclusive rights of any type or scope or rights of first refusal, rights of first negotiation or similar rights or terms to any Person, (C) requires Company or any of its Affiliates to use any supplier or third party for all or substantially all of any of its material requirements or needs in any respect, (D) limits or purports to limit in any material respect the ability of Company or any of its Affiliates to solicit any customers or clients of the other parties thereto, or (E) requires Company or any of its Affiliates to provide to the other parties thereto “most favored nations” status or similar best price rights;
(ix) Contract providing for “earn-outs,” “performance guarantees” or other similar contingent payments by Company or any Subsidiary that would reasonably be expected to be in excess of $1,000,000 during any future twelve-month period;
(x) Contract under which (A) a federal Governmental Entity procures supplies or services from Company or any of its Subsidiaries or provides a grant to Company or any of its Subsidiaries, or any subcontract to such a Contract or (B) a state Governmental Entity procures supplies or services from Company or any of its Subsidiaries or provides a grant to Company or any of its Subsidiaries, or any subcontract to such a Contract, that involves aggregate payments by or to Company or any of its Subsidiaries in excess of $1,000,000;
(xi) Contract between Company or any wholly owned Subsidiary of Company, on the one hand, and another Subsidiary that is not wholly owned or Company Minority Interest Business, on the other hand;
(xii) Contract entered into on or after March 27, 2009 relating to the acquisition or disposition of any business or any assets (whether by merger, sale of stock or assets or otherwise) in an amount in excess of $10,000,000 or under which there remain any representations, covenants, indemnities or other obligations (including indemnification or other contingent obligations) that are in effect and material to Company;
(xiii) Contract for which the principal purpose is the ownership, use or licensing of any Intellectual Property by or to Company or any of its Subsidiaries (other than non-exclusive (i) off-the-shelf or other commercially available software licenses with annual payments of less than $1,000,000 cumulatively per software title or (ii) licenses to Marks, Copyrights, software or similar items embedded in or included on equipment or products sold by Company or its Subsidiaries granted in the ordinary course of business consistent with past practice);
(xiv) Contract with any of Company’s 10 most material suppliers (measured based on aggregate payments by Company to such suppliers during the twelve month period ended August 31, 2012); and
(xv) Contracts (other than Contracts of the Companytype described in subclauses (i) through (xiv) above) that involve aggregate payments by or to Company or any of its Subsidiaries in excess of $5,000,000 during any twelve-month period or in excess of $10,000,000 in the aggregate during the term of such Contract, other than purchase or sales orders or other Contracts that, in each case, were entered into in the ordinary course of business consistent with past practice and are terminable or cancelable by Company or any of its Subsidiaries without penalty or liability on 90 days’ notice or less.
(b) Collectively, the contracts set forth in Schedule 4.16(aSection 3.17(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are herein referred bound as of the date hereof. True and complete copies of each Material Contract (including any material amendments, waivers or modifications thereto) in existence as of the date hereof have been delivered or made available by Company to as Parent prior to the “Company Contractsdate hereof.”
(c) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and (and/or each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other Subsidiary party thereto, ) and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract party thereto, nor, to the knowledge of the Company, is any other party to thereto, is in breach of, or default under, any such Company Contract in Material Contract, and no event has occurred that with notice or lapse of time or both would reasonably be expected to (i) constitute such a breach or default thereunder. Complete and accurate copies thereunder by Company or any of each Company Contract in effect as its Subsidiaries party thereto, or, to the knowledge of Company, any other party thereto; or (ii) give any Person the date hereof (including all amendments and modifications) have been furnished right to declare a default, accelerate the maturity or otherwise made available to Parentperformance of any Material Contract, or cancel, terminate or modify any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement and agreements filed as exhibits to the Company Disclosure Letter sets forth a true and complete listPartnership SEC Documents, as of the date of this Agreement, ofneither the Partnership nor any of its Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described any Contract that (A) expressly imposes any material restriction on the right or ability of the Partnership and its Subsidiaries, taken as a whole, to compete with any other person or acquire or dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Partnership or any of its Subsidiaries in this Section 4.16(aa material manner;
(iii) with respect any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Partnership or any of its Subsidiaries in an amount in excess of $25 million, other than such indebtedness among the Partnership and its wholly owned Subsidiaries;
(iv) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the Company formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Partnership and its Subsidiaries or among the Partnership’s Subsidiaries;
(v) any collective bargaining agreement or other Contract with any labor union, labor organization, or employee association applicable to employees of the Partnership or any Subsidiary of its Subsidiaries;
(vi) any Contract that is a settlement, conciliation or similar agreement pursuant to which the Partnership or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement;
(vii) any Contract expressly limiting or restricting the ability of the Company.Partnership or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, limited liability company interests or other equity interests, as the case may be;
(bviii) Collectivelyany acquisition Contract that contains “earn out” or other contingent payment obligations, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not or remaining indemnity or similar obligations, that could reasonably be expected to have, individually result in payments after the date hereof by the Partnership or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach excess of $25 million; and
(ix) any material lease or default under any Company Contract nor, sublease with respect to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parenta Partnership Leased Real Property.
Appears in 2 contracts
Sources: Merger Agreement (Crestwood Midstream Partners LP), Merger Agreement (Crestwood Equity Partners LP)
Material Contracts. (a) Schedule 4.16(a) 2.10 of the Schedule of Exceptions contains a complete and accurate list of all of the following contracts, agreements, instruments and arrangements to which the Company Disclosure Letter sets forth is a party (a true and complete listcopy of each of which has been delivered by the Company to the Purchaser) (the “Material Contracts”):
(a) All collective bargaining agreements and other labor agreements; all employment, consulting, independent contractor and work made for hire agreements, all Plans (as defined in Section 2.13(a)) and all other plans, agreements, arrangements or practices which constitute or specify compensation or benefits to any of the date directors, officers, employees, consultants or independent contractors of the Company;
(b) All contracts, agreements and similar obligations under which the Company is or may become obligated to pay any legal, accounting, brokerage, finder’s or similar fees or expenses in connection with, or to incur any severance pay or special compensation obligations which would become payable by reason of, this AgreementAgreement or the consummation of the transactions contemplated hereby;
(c) All contracts, of:
agreements and similar obligations under which the Company is or will after the Closing be (i) each contract restricted from carrying on any business or other activities anywhere in the world or (other than this Agreementii) that involves a pending bound to participate in any allocation or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any sharing of its Subsidiaries to dispose of or acquire assets or properties with a fair market value Taxes (as defined in excess of $25,000,000Section 2.12);
(iid) each contract that grants any right of first refusal or right of first offer or that limits the ability of the CompanyAll contracts, any Subsidiary of the Company or any of their respective Affiliates agreements and similar obligations (including, without limitation, options) to own, operate, sell, transfer, pledge (i) sell or otherwise dispose of any businessesassets or rights of the Company except in the ordinary course of business or (ii) purchase or otherwise acquire any material assets or rights except in the ordinary course of business;
(e) All contracts, securities agreements and similar obligations under which the Company has or assets will after the Closing have any liability or obligation to or for the benefit of any Affiliate (other than provisions requiring notice as defined in Section 2.17 hereof) of the Company;
(f) All contracts, agreements and similar obligations under which the Company has any liability or consent obligation for Debt or constituting or giving rise to assignment by a Guarantee of any counterparty theretoliability or obligation of any Person, or under which any Person has any liability or obligation constituting or giving rise to a Guarantee of any liability or obligation of the Company (including, without limitation, partnership and joint venture agreements);
(iiig) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of All contracts, agreements and similar obligations under which the Company or may become obligated to pay any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) amount in excess of $15,000,000US$10,000 in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any (i) acquisition or disposition of assets other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into sales of inventory in the ordinary course of business, each contract under which the Company (ii) acquisition or a Subsidiary disposition of the Company hassecurities, directly (iii) assumption of liabilities or indirectlywarranty, made any advance(iv) settlement of claims, loan(v) merger, extension of credit consolidation or capital contribution toother business combination, or other investment in, (vi) any Person series or group of related transactions or events of a type specified in subclauses (other than the Company or a Subsidiary of the Companyi) through (v);
(vh) each contract that involves or constitutes an interest rate capAll license agreements, interest rate collarroyalty agreements, interest rate swap or software development agreements, joint venture agreements, distribution agreements, reseller agreements, supply agreements, manufacturing agreements, other contract or agreement agreements relating to a forward swap Technology or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company IP Rights or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company has granted rights or any permission to use Technology or IP Rights of its Subsidiaries is the indemnitorCompany, and similar commercial arrangements;
(xii) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andAll contracts with Governmental Entities;
(xiij) each “material Each other contract” (as such term is defined in Item 601(b)(10) , agreement, instrument, arrangement, commitment or obligation the unremedied breach of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not which could reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect;
(k) All contracts with merchants, each Company Contract is legalprocessors, suppliers, card companies. All such Material Contracts are valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceabilitythe Company and, to Creditors’ Rights. Except as would not reasonably be expected to havethe Company’s Knowledge, individually or each other party thereto have performed in the aggregateall material respects their obligations thereunder, a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge Company’s Knowledge, any other party thereto is in default of any material provision thereunder, nor has there occurred any event or circumstance which with notice or lapse of time or both would constitute such a default or event of default, on the part of the Company or, to the Company’s Knowledge, is any other party thereto or give to any other party thereto the right to terminate or modify in any material respect any such Material Contract. The Company has not received written notice that any party to any such Company Material Contract in breach intends to cancel, terminate or default refuse to renew such contract or to exercise or decline to exercise any option or right thereunder. Complete and accurate copies Except as provided in this Agreement, there is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of each Company Contract in effect as or requiring any payments of the date hereof (including all amendments and modifications) have been furnished to other distributions based on such profits, revenues or otherwise made available to Parentcash flows.
Appears in 2 contracts
Sources: Merger Agreement (Pipeline Data Inc), Merger Agreement (Pipeline Data Inc)
Material Contracts. (a) Schedule 4.16(aAll of the following Contracts (the “Material Contracts”) are listed in Section 4.8 of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, ofSchedule:
(i) each contract any commission or sales agreement with an employee, individual consultant or salesperson, or under which a firm or other organization provides commission or sales-based services to the Company or any of its Subsidiaries, except for those agreements entered into in the ordinary course of business;
(ii) any fidelity or surety bond or completion bond;
(iii) any lease of personal property having aggregate outstanding ongoing obligations of the Company or any of its Subsidiaries in excess of $500,000;
(iv) other than this Agreementstandard customer contracts previously provided to Parent or that contain indemnification or guaranty provisions in favor of any person that do not impose any obligation or liability (contingent or otherwise) that involves a pending on the Company or contemplated mergerany of its Subsidiaries greater than those contained in contracts previously provided to Parent, business combination, acquisition, purchase, sale any agreement of indemnification or divestiture that requires guaranty to any person;
(v) any agreement containing any covenant materially limiting the freedom of the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete engage in any line of business or in any geographic territory or to compete with any Person person, or which grants to any person any exclusivity to any geographic areaterritory, any customer, or any product or service;
(vi) any agreement relating to capital expenditures and involving future payments in excess of $150,000, or purchase orders (including for services) involving future payments in excess of $250,000;
(vii) any agreement relating to the disposition of assets or any interest in any business enterprise outside the ordinary course of business or any agreement relating to the acquisition of assets or any interest in any business enterprise outside the ordinary course of business;
(viii) each partnershipany mortgages, joint ventureindentures, limited liability company loans or strategic alliance agreement credit agreements, security agreements or other agreements or instruments relating to which the Company borrowing of money or a Subsidiary the extension of the Company is a party credit (other than any such agreement solely between security agreements for office or among similar equipment where the Company and its wholly owned Subsidiariesvalue of the assets secured does not exceed $300,000);
(ix) each contract between any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or among merchant agreement, joint venture, partnership, strategic alliance or agreement involving the Company sharing of profits, losses, costs or liabilities with any person or any Subsidiary of the Companydevelopment, on the one handoriginal equipment manufacturer, and the Company Manager value added re-seller, remarketer or other agreement for distribution, data-sharing, marketing, resale, distribution or similar arrangement relating to any officer, director product or Affiliate (other than a wholly owned Subsidiary of the Company) service of the Company or any of its Subsidiaries or the products or services of any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of other person that involved payments by the Company Managerand its Subsidiaries of $250,000 or more in the 12 month period ended June 30, on the other hand2008;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees material liability of the Company or any of its Subsidiaries pursuant to a customer contract or reseller agreement that does not limit the liability of the Company or any of its Subsidiaries to the amount of the total fees paid to the Company or any of its Subsidiaries under such contract;
(xi) any material commitment to any customer of the Company or any of its Subsidiaries or other person to develop or customize any product or service, or to customize or develop any third-party product, service or platform, in either case without compensation in an amount in excess of the cost to the Company or any of its Subsidiaries to perform such commitment, excluding contracts for hardware sold by the Company;
(xii) any agreement pursuant to which the Company or any of its Subsidiaries is agreed to provide “most favored nation” pricing or other terms and conditions to any person with respect to the indemnitorsale, distribution, license or support of any products or services;
(xixiii) each vendorexcept as disclosed in clauses (i) through (xii) above, supplier any agreement that involved payments or consulting receipts of more than $350,000 in the 12 month period ended December 31, 2007 or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company expects to involve payments or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess receipts of $50,000 following the Effective Time350,000 or more; and
(xiixiv) each “material contract” (as such term is defined in Item 601(b)(10) any agreement, the termination or loss of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the which would have a Company or any Subsidiary of the CompanyMaterial Adverse Effect.
(b) Collectively, the contracts set forth in Schedule 4.16(a) Each Material Contract is a valid and binding obligation of the Company Disclosure Letter are herein referred to as enforceable against the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company’s knowledge, each other party thereto, and is in full force and effect, subject, as and the Company has performed all obligations required to enforceabilitybe performed by it to the date hereof under each Material Contract and, to Creditors’ Rights. Except the Company’s knowledge, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract, except in each case as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company has not received notice, neither nor does it have knowledge, of (i) any violation or default of any obligation under (or any condition which with the Company nor passage of time or the giving of notice would cause such a violation of or default under), or of any cancellation, termination or indication of intent to no longer perform under, any Material Contract to which it is a party or by which it or any of its Subsidiaries properties or assets is in breach bound, or default under (ii) any Company Contract nor, indication from any of its customers or resellers that any such customer or reseller no longer intends to the knowledge of conduct business with the Company, is any other party except in each case for such violations, defaults, conditions or terminations that would not, individually or in the aggregate, reasonably be expected to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Open Text Corp)
Material Contracts. (a) Schedule 4.16(aExcept for contracts (x) listed in Section 4.12 of the Company Disclosure Letter sets forth a true and complete listor (y) filed as exhibits to the Company SEC Filings, as of the date of this Agreement, ofneither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date hereof:
(i) each contract is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(ii) obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than this Agreementprincipal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $200,000 and is not cancelable within sixty (60) days without material penalty to the Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business;
(iv) is an agreement that obligates the Company or any Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or Company Subsidiary is the indemnitor, other than (A) the Company Charter, the Company Bylaws, the articles or certificates of incorporation, bylaws, operating agreements (or comparable organizational or governing documents) of any Company Subsidiary, and (B) any property management agreement or similar agreement pursuant to which a Company Subsidiary provides such an indemnification;
(v) constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount as of the date hereof greater than $250,000;
(vi) requires the Company or any Company Subsidiary to dispose of or acquire any material assets or properties (other than in connection with the expiration of a Company Lease or a ground lease affecting a Company Property), or involves a any pending or contemplated merger, consolidation or similar business combinationcombination transaction, acquisition, purchase, sale or divestiture that requires the except for any Company Lease or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000ground lease affecting any Company Property;
(iivii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other similar contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposestransaction;
(viviii) each employment contract to which sets forth the Company operational terms of a joint venture, partnership, limited liability company with a Third Party member or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability strategic alliance of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)Subsidiary;
(ix) each contract between or among the is with a Governmental Authority, except for any Company or Lease; or
(x) constitutes a loan to any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate Person (other than a wholly owned Subsidiary of the CompanyCompany Subsidiary) of by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of its Subsidiaries Company Properties or any the funding of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or improvements to Company Properties). Each contract listed on Section 4.12 of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant Disclosure Letter to which the Company or any of its Subsidiaries Company Subsidiary is the indemnitor;
(xi) each vendor, supplier a party or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under by which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (bound as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companydate hereof is referred to herein as a “Company Material Contract”.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as individually or in the aggregate has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectexcept as may be limited by bankruptcy, as to enforceabilityinsolvency, to Creditorsreorganization, moratorium or other similar Laws affecting creditors’ Rightsrights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as individually or in the aggregate has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of the Company or any Company Subsidiary, nor, to the knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Company Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default under any Company Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, neither . Neither the Company nor any Company Subsidiary has received notice of its Subsidiaries is in breach any violation or default under any Company Contract norMaterial Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to the knowledge of the Company, is any other party to any such have a Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (CapLease, Inc.)
Material Contracts. (a) Schedule 4.16(a) of Except for this Agreement, the Company Disclosure Letter sets forth a true Benefit Plans and complete listagreements filed as exhibits to the Company SEC Documents, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or bound by:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC);
(ii) not otherwise described any Contract that (A) expressly imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to compete with, or acquire or dispose of the securities of, any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries, in an amount in excess of $25 million;
(iv) any joint venture, partnership or limited liability company agreement or other Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vi) any acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of its Subsidiaries in excess of $25 million;
(vii) any Labor Agreement;
(viii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Entity and pursuant to which the Company or any of its Subsidiaries will have a material outstanding obligation after the date of this Section 4.16(aAgreement;
(ix) with respect to any Contract that obligates the Company or any Subsidiary for more than one (1) year, is not terminable without penalty upon notice of ninety (90) days or less and has total projected revenue of at least $50 million;
(x) any Contract that involves a take or pay amount of at least $25 million;
(xi) the Company Real Property Leases;
(xii) any Contract pursuant to which the Company or any of its Subsidiaries (A) is granted a license to use any third-party Intellectual Property that is material to the business of the CompanyCompany and its Subsidiaries, taken as a whole, other than (i) shrink-wrap, click-wrap and off-the shelf Software licenses, and (ii) any other non-exclusive licenses for Software that is commercially available generally or (B) grants to a third party a license to use any Intellectual Property owned by the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole, other than non-exclusive licenses granted in the ordinary course of business; and
(xiii) any Contracts or arrangements containing a non-compete or similar type of provision that limit or otherwise restrict the Company or any of its Subsidiaries or any of their respective Affiliates or any successor thereto, and that would reasonably be expected to, after the Effective Time, limit or restrict Sodium or any of its Affiliates (including the Company and its Subsidiaries following the Closing) or any successor thereto, from (A) engaging or competing in any line of business or in any geographic area during any period or (B) making, selling or distributing any products or services, or using, transferring or distributing, or enforcing any of their respective rights with respect to, any of their respective material assets or properties. All contracts of the types referred to in clauses (i) through (xiii) above are referred to herein as “Company Material Contracts.”
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on : (i) neither the Company and each nor any Subsidiary of its Subsidiaries the Company that is a party thereto is in breach of or default under the terms of any Company Material Contract; (ii) to the Company’s knowledge, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, no event has occurred that, with or without notice or lapse of time, or both would constitute a material breach of or material default under, or give rise to a right of termination, cancellation or acceleration of any material obligation under any Company Material Contract; and (iii) each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge Company’s knowledge, of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, subject to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunderRemedies Exceptions. Complete and accurate copies A copy of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have has previously been furnished to or otherwise made available to ParentSodium (including via the Company SEC Documents).
Appears in 2 contracts
Sources: Merger Agreement (ChampionX Corp), Merger Agreement (Schlumberger Limited/Nv)
Material Contracts. (a) Schedule 4.16(a) Section 3.16 of the Company Seller Disclosure Letter Schedule sets forth a true and complete listlist of all Contracts that are Assets or under which there is an Assumed Liability, as in each case under which any party thereto has continuing Liabilities or rights, with respect to any of the date of this Agreementfollowing (each, of:a “Material Contract”):
(i) each contract (other than this AgreementA) that involves a pending any Contract containing any covenant (1) prohibiting or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires limiting the Company right of Parent or any of its Subsidiaries Affiliates to dispose engage in any line of business or acquire assets to compete with any Person in any line of business or properties in any market or geographic location, or (2) prohibiting Parent or any of its Affiliates from engaging in business with any Person or levying a fair market value in excess fine, charge or other payment for doing so, or (B) any Contract otherwise qualifying as a Material Contract granting to any Person a right of $25,000,000first refusal, right of first offer, “most favored nation” or similar arrangement;
(ii) each contract that grants any right of first refusal Contracts for the acquisition or right of first offer or that limits the ability of the Company, any Subsidiary of the Company disposition by Parent or any of their respective its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businessesownership interest in any other Person or other business enterprise (A) since November 1, securities 2014 for consideration with an aggregate value of $1,000,000 or assets more or (other than provisions requiring notice B) pursuant to which Parent or any of its Affiliates is subject to any continuing deferred purchase price, “earn out”, purchase price adjustment or consent to assignment by any counterparty thereto)non-competition payment obligations;
(iii) each contract relating all Contracts related to outstanding the incurrence of Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000), other than agreements solely among accounts receivables and payables in the Company and its wholly owned Subsidiariesordinary course of business consistent with past practice;
(iv) any Contract that grants to any third party an Encumbrance, other than contracts entered into a Permitted Encumbrance, on all or any part of any material Assets;
(v) all Contracts with Material Customers or Material Suppliers;
(vi) any material Contract relating to any (A) material Business Intellectual Property or IT Assets that are Purchased Assets or (B) material Intellectual Property or IT Assets used primarily in the Business and licensed to Parent or its Affiliates from a third party, other than in the case of clauses (A) or (B) off-the-shelf software with annual fees of less than $500,000;
(vii) all Contracts other than purchase orders made in the ordinary course of businessbusiness involving the expenditure, each contract under which the Company payment or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company receipt by Parent or any of its Subsidiaries;
Affiliates attributable to the Business during 2016 or expected in 2017 (viicalculated using the average expenditure, payment or receipt per month during the 2017 year to date multiplied by twelve (12)) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts more than $2,000,000 in the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic areaaggregate;
(viii) each partnership, Contracts relating to any joint venture, limited liability company partnership or strategic alliance similar arrangement of Parent or any of its Affiliates, including any agreement to which the Company share profits or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)losses;
(ix) each contract between any Contract involving a resolution or among the Company settlement of any actual or any Subsidiary of the Company, on the one hand, and the Company Manager threatened Action with either a value greater than $1,000,000 or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handmaterial ongoing requirements;
(x) each contract that obligates the Company any obligation, such as a put or similar right, pursuant to which Parent or any of its Subsidiaries Affiliates could be required to indemnify any past or present directorspurchase, officersredeem, or employees otherwise acquire an equity securities of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitoranother Person;
(xi) each vendorany obligation to make any investment in (in the form of a loan, supplier capital contribution or consulting otherwise, other than with respect to trade accounts receivable in the ordinary course of business consistent with past practice), or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant provide any guarantee with respect to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or obligations of, any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Timethird party; andor
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this any Contract required to be disclosed on Section 4.16(a) with respect to the Company or any Subsidiary 3.24 of the CompanySeller Disclosure Schedule.
(b) CollectivelyTrue and complete copies of all Material Contracts (other than immaterial amendments, supplements, exhibits or schedules thereto) have been made available to Buyer prior to the contracts set forth date hereof. All of the Material Contracts are valid and binding on each party thereto and are in Schedule 4.16(afull force and effect in accordance with their terms, except to the extent they have previously expired or terminated in accordance with their terms and except with respect to Contracts listed on Section 3.16(a)(xii) of the Company Seller Disclosure Letter Schedule that are herein referred terminated prior to as the “Company Contracts.” Except as would not reasonably be expected Closing pursuant to have, individually Section 5.06. None of Parent or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each any of its Subsidiaries that Affiliates is a party thereto (with or without notice or lapse of time, or both) in material violation of or material default under any Material Contract, and, to the knowledge Knowledge of the CompanyParent and Sellers, each other party thereto, and there is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually no existing or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach claimed material violation or material default under any Company Contract nor, to the knowledge of the Company, is by any other party to any such Company Contract in breach Material Contract. None of Parent or default thereunder. Complete and accurate copies any of each Company Contract in effect as its Affiliates has received any written notice of the date hereof (including all amendments and modifications) have been furnished to any actual or otherwise made available to Parentthreatened termination, cancellation or limitation of any Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Owens & Minor Inc/Va/), Purchase Agreement (Halyard Health, Inc.)
Material Contracts. (a) Schedule 4.16(aSection 3.16(a) of the Company Disclosure Letter sets forth a true Schedule lists each of the following Contracts of BSC and complete listthe Sellers with respect to the Business or by which any of the Purchased Assets may be bound (such Contracts, as whether listed or required to be listed, being the “Material Contracts”):
(i) any Contract for the distribution or sale of Products by the Business, which involved consideration or payments in excess of $250,000 in the aggregate during the year ended December 31, 2009 or contemplates or involves consideration or payments in excess of $250,000 after the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract all Contracts with independent contractors or consultants (or similar arrangements) that grants any right involve annual payments in excess of first refusal $150,000, or right in the case of first offer Contracts with U.S. health care professionals $75,000, and are not cancelable without penalty or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other further payment and without more than provisions requiring notice of or consent to assignment by any counterparty thereto)60 days’ notice;
(iii) each contract relating to outstanding Indebtedness (any Contract for the purchase of materials, supplies, goods, services, equipment or commitments or guarantees in respect thereof) of the Company other assets providing for annual payments by BSC or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess Seller of $15,000,000, other 250,000 or more and is not cancelable without penalty or further payment and without more than agreements solely among the Company and its wholly owned Subsidiaries60 days’ notice;
(iv) other than contracts entered into in the ordinary course of businessany employee collective bargaining Contract with any labor union, each contract under which the Company or a Subsidiary of the Company hasstaff association, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, works council or other investment in, any Person (other than the Company or a Subsidiary body of the Company)employee representatives;
(v) each contract that involves any lease for personal property providing for annual rentals payable by BSC or constitutes an interest rate cap, interest rate collar, interest rate swap any Seller of $250,000 or other contract more and is not cancelable without penalty or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposesfurther payment and without more than 60 days’ notice;
(vi) each employment contract to which any Contract concerning the Company establishment or operation of a Subsidiary of the Company is a party partnership, joint venture or limited liability company or other than at-will arrangements that can be terminated at any time without material liability to the Company similar agreement or any of its Subsidiariesarrangement;
(vii) each contract containing any non-compete, exclusivity all Transferred IP Agreements;
(viii) all leases in respect of the Leased Real Property and the Cork Purchaser Leased Facility;
(ix) all Contracts that limit or similar type of provision that materially restricts purport to limit the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) Business to compete in any line of business or with any Person or in any geographic area;
(viii) each partnership, joint venture, limited liability company area or strategic alliance agreement to which the Company or a Subsidiary during any period of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handtime;
(x) each contract that obligates the Company any Contract creating or granting a material Encumbrance (other than Permitted Encumbrances) on any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorPurchased Asset;
(xi) each vendor, supplier any other Contract with respect to the Business not made in the ordinary course of business which involved payments to or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company by BSC or any of its Subsidiaries will be required to pay fees, expenses or other costs Seller in excess of $50,000 following 250,000 in the Effective Timeaggregate during the year ended December 31, 2009 or contemplates or involves payments to or by BSC or any Seller in excess of $250,000 in any 12 month period after the date of this Agreement; and
(xii) each “all material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect Contracts pursuant to the Company which BSC or any Subsidiary of its Affiliates provides services in respect of the CompanyBusiness.
(b) CollectivelyBSC has delivered to Purchaser true and complete copies (including all amendments, the contracts set forth in Schedule 4.16(amodifications and waivers thereto) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveeach written Material Contract, individually or in the aggregate, and a Company description of each oral Material Adverse Effect, each Company Contract (if any). Each Material Contract (i) is legal, valid, valid and binding on one or more of BSC and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto Sellers and, to the knowledge Knowledge of BSC, the Company, each other party counterparties thereto, and is in full force and effecteffect and (ii) upon consummation of the transactions contemplated by this Agreement, subjectexcept to the extent that any consents set forth in Section 3.02 of the Disclosure Schedule are not obtained, as to enforceability, to Creditors’ Rightsshall continue in full force and effect without penalty or other adverse consequence. Except as would not reasonably be expected to have, individually None of BSC or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries Sellers is in breach of, or default under under, any Company Material Contract norto which it is a party and, to the knowledge Knowledge of the CompanyBSC, is any (i) no other party to any such Company Material Contract is in breach of, or default thereunder. Complete under, any Material Contract and accurate copies (ii) no event has occurred which with notice or lapse of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to time would constitute a breach or otherwise made available to Parentdefault, or would permit termination, modification or acceleration, under such Material Contract.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Stryker Corp), Sale and Purchase Agreement (Boston Scientific Corp)
Material Contracts. (a) Schedule 4.16(aAll Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 3.18(a) and any Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC, Section 3.18(b) of the Company Disclosure Letter sets forth a complete list, and the Company has made available to Parent true and complete listcopies, of each Contract to which the Company or any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject (other than any of the foregoing between the Company and any of the Company Subsidiaries or between any wholly-owned Company Subsidiaries), as of the date of this Agreement, ofthat:
(i) each contract (other than this Agreement) constitutes a partnership, joint venture or similar arrangement that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires is material to the Company or any of its Subsidiaries to dispose of or acquire assets or properties with and the Company Subsidiaries, taken as a fair market value in excess of $25,000,000whole;
(ii) each contract that grants any right evidences the creation, incurrence, assumption or guarantee of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary Indebtedness of the Company or any Company Subsidiary in an amount in excess of their respective Affiliates to own$1,000,000 (except for such Indebtedness between the Company and any of the Company Subsidiaries or between the Company Subsidiaries, operate, sell, transfer, pledge or otherwise dispose guarantees by the Company of Indebtedness of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment the Company Subsidiaries and guarantees by any counterparty theretoof the Company Subsidiaries of Indebtedness of the Company or any other Company Subsidiary);
(iii) each contract relating is a Contract with an affiliate that would be required to outstanding Indebtedness (or commitments or guarantees in respect thereofbe disclosed under Item 404(a) of Regulation S-K promulgated under the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned SubsidiariesExchange Act;
(iv) grants any rights of first refusal, rights of first negotiation or other than contracts entered into in similar rights to any person with respect to the ordinary course sale of business, each contract under which the Company or a Subsidiary any material operating unit of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than and the Company or Subsidiaries, taken as a Subsidiary of the Company)whole;
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that would materially restricts restrict the ability of the Company Parent or any of its Subsidiaries (including Parent upon consummation of other than the TransactionsSurviving Corporation and its Subsidiaries) following the Effective Time to compete in any line of business that is material to Parent or with its Subsidiaries or in any Person or geographic area;territory that is material to Parent and its Subsidiaries; or
(viiivi) each partnershipis a mortgage, joint venturepledge, limited liability company security agreement, deed of trust or strategic alliance agreement to which other Contract granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or a any Company Subsidiary of the Company is a party (other than any such agreement solely between item that relates to Indebtedness that is not required to be listed by Section 3.18(b)(ii)). Each Contract described in Section 3.18(a) or among Section 3.18(b) that is not terminable by the other party or parties thereto on 90 days’ or less notice is referred to in this Agreement as a “Company Material Contract.”
(c) Neither the Company and its wholly owned Subsidiaries);
(ix) each contract between nor any Company Subsidiary is in breach of or among default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any Subsidiary of the CompanyCompany Subsidiary, on the one handwhere such breach or default, and the Company Manager individually or any officertogether with other such breaches or defaults, director has had or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, has had or would reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement, each Company Material Contract is legal, valid, a valid and binding and enforceable in accordance with its terms on obligation of the Company and each of its Subsidiaries or a Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except except for such failures as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, subject to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete Bankruptcy and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentEquity Exception.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (West Marine Inc)
Material Contracts. (a) Schedule 4.16(aExcept (x) as set forth on Section 4.19 of the Company Disclosure Letter sets forth Schedules, (y) for Reinsurance Agreements and Insurance Contracts (including insurance or annuity policies and contracts, or any binders, slips, certificates, endorsements or riders thereto) and (z) for contracts, agreements, instruments or commitments that relate to Investment Assets (including the disposition, custody or acquisition thereof), neither the Company nor any of its Subsidiaries is a true and complete listparty to or expressly bound by any agreement, as of the date of this Agreementlease, ofeasement, license, contract, note, bond, mortgage, indenture or other legally binding obligation (each, a “Contract”) that:
(i) each contract would be required to be filed by the Company as a “material contract” (other than this Agreementas such term is defined in Item 601(b)(10) that involves a pending of Regulation S-K of the SEC);
(ii) (A) limits in any material respect either the type or contemplated merger, line of business combination, acquisition, purchase, sale or divestiture that requires in which the Company or any of its Subsidiaries to dispose of or acquire assets any Person that controls, or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Companyis under common control with, any Subsidiary of the Company may engage or the manner or locations in which any of their respective Affiliates to own, operate, sell, transfer, pledge them may so engage in any business (including through “non-competition” or otherwise dispose of any businesses, securities “exclusivity” provisions) or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iiiB) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of prohibits the Company or any of its Subsidiaries or any Person that controls, or is under common control with, the Company from soliciting any client or customer;
(whether incurrediii) (A) is an indenture, assumedloan or credit Contract, guaranteed loan note, mortgage Contract or secured by other Contract representing, or any asset) guarantee of, Indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $15,000,00010,000,000, other than agreements solely any Indebtedness between or among the Company and any of its wholly owned Subsidiaries;
Subsidiaries or (ivB) other than contracts entered into in the ordinary course of business, each contract under which is a guarantee by the Company or a Subsidiary any of the Company has, directly or indirectly, made its Subsidiaries of such Indebtedness of any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (person other than the Company or a wholly-owned Subsidiary of the Company);
(viv) each contract that involves limits or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries to (including Parent upon consummation A) declare or pay dividends or make distributions in respect of the Transactionstheir capital stock, partner interests, membership interests or other equity interests, (B) to compete in pledge capital stock or (C) issue any line guarantee of business or with any Person or geographic areaIndebtedness;
(viiiv) each is a partnership, limited liability company, joint ventureventure or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or strategic alliance agreement to joint venture in which the Company owns, directly or a indirectly, any voting or economic interest, other than with respect to any wholly-owned Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)Company;
(ixvi) each contract involves the settlement of any pending or threatened claim, action or proceeding that requires payment obligations after the date hereof in excess of $5,000,000, other than claims settled under Insurance Contracts in the ordinary course of business and within applicable policy limits;
(vii) has been entered into between or among the Company or any Subsidiary of the Companyits Subsidiaries, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of under the Exchange Act) or of the Company Manager), on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to indemnify such officer, director, Affiliate or family member;
(xviii) each contract that (A) grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of the Company or any of its Subsidiaries or (B) obligates the Company or any of its Subsidiaries to indemnify conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any past third party;
(ix) provides for any guaranty of liabilities or present directorsobligations by the Company or any Subsidiary thereof, officersin each case that is material to the Company and its Subsidiaries, taken as a whole, other than any guaranty by the Company or employees a Subsidiary thereof of any of the obligations of the Company or another wholly-owned Subsidiary thereof;
(A) relates to the disposition or acquisition (directly or indirectly) by the Company or any of its Subsidiaries of any material assets or properties of the Company or its Subsidiaries, other than any such Contracts that are no longer executory or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material interest in any other Person or other business enterprise;
(xi) pursuant to which the Company or any of its Subsidiaries is the indemnitor;restricted in its right to assert, use or register any material Company Intellectual Property, including coexistence agreements, settlement agreements, covenants not to ▇▇▇ or similar agreements or arrangements; or
(xixii) each vendoris a collective bargaining agreement or other agreement with any labor union, supplier works council, trade union, labor association or consulting or similar contract not otherwise other employee representative organization.
(b) Each such Contract described in this clauses (i) through (xii) above is referred to herein as a “Material Contract.” Except as otherwise set forth on Section 4.16(a4.19(b) that (A) cannot be voluntarily terminated of the Company Disclosure Schedules, each Material Contract and each Contract pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required grants or obtains rights to pay feesmaterial Intellectual Property (excluding Contracts granting rights to use generally commercially available, expenses off-the-shelf software (including “shrink-wrap” or other costs in excess “click-wrap” agreements)) (“Material IP Contract”) is a legal, valid and binding obligation of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any the Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto thereto, and, to the knowledge of the Company, and each other party thereto, and is in full force and effecteffect and enforceable by the Company or the applicable Subsidiary, subjectin each case, as to enforceability, subject to Creditors’ Rights. Except as would not reasonably be expected to have, except as, individually or in the aggregate, is not and would not be reasonably expected to be, material to the Company and its Subsidiaries, taken as a Company Material Adverse Effect, neither whole. Neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract Subsidiaries, nor, to the knowledge of the Company, is any other party to any such Company a Material Contract or Material IP Contract is in breach or violation of any provision of, or in default thereunderunder, any Material Contract or Material IP Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that, individually or in the aggregate, is not and would not be reasonably expected to be, material to the Company and its Subsidiaries, taken as a whole. Complete The Company has previously made available true and accurate complete copies of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentof this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (American National Group Inc), Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.)
Material Contracts. (a) Schedule 4.16(aSection 3.15(a) of the Company Sellers’ Disclosure Letter Schedule sets forth a true complete and complete list, as accurate list of each of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (any Contract of a nature described below (whether or not set forth on the indemnitor;
(xiSellers’ Disclosure Schedule) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries is a party or otherwise bound, being referred to herein, along with the IP Licenses and any other Contract required to be listed under Section 3.14, as a “Material Contract” and, collectively, as the “Material Contracts”):
(i) any employment, contractor or consulting agreement, Contract with an employee or individual consultant, contractor, or salesperson, any agreement, Contract or commitment to grant any bonus, severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, Contract, or commitment with a firm or other organization, excluding any non-Senior Manager agreements with annual salary amounts of less than $100,000 entered into in the Ordinary Course of Business under the terms and conditions of the Company’s standard form of employment agreement, the form of which has been delivered to Parent and Purchaser;
(ii) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be required to pay feesincreased, expenses or other costs the vesting of benefits of which will be accelerated, by the occurrence of any of the 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;
(iii) any fidelity or surety bond or completion bond;
(iv) any Property Lease and any lease of personal property having annual rental payments in excess of $50,000 following individually;
(v) any agreement of indemnification of third parties or guaranty of obligations of third parties (other than indemnification provisions set forth in the Effective Time; andCompany’s Standard Form Agreements where the indemnification obligation or guarantee is limited to the amount received by Company under such Contact);
(vi) any Contract or commitment relating to capital expenditures for tangible assets and involving future payments in excess of $100,000 individually;
(vii) any Contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the Ordinary Course of Business;
(viii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order or Contract for the purchase of materials involving in excess of $100,000 individually;
(x) any Contracts that contain “most favored nation” or other preferred pricing provisions;
(xi) any dealer, distribution, joint marketing, strategic alliance, affiliate or development agreement;
(xii) each “material contract” any Contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(as such term xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or its Subsidiaries;
(xiv) any nondisclosure, confidentiality or similar agreement, other than those entered into with employees or contractors, or any actual or prospective customer or vendor in the Ordinary Course of Business;
(xv) with regard to the Company’s German Subsidiary, any domination agreement (Beherrschungsvertrag), profit and loss pooling agreement (Gewinnabführungsvertrag) or other enterprise agreement within the meaning of Sec. 291 et sq. German Stock Corporation Act (Unternehmensvertrag i.S.v. §§ 291 ff AktG), joint venture or other co-operation agreement, cash-pooling agreements, silent partnership agreement (stille Beteiligung) or any agreement under which a third party is defined in Item 601(b)(10entitled to the profits (or parts thereof) of Regulation S-K under the Exchange ActCompany’s German Subsidiary; or
(xvi) any other Contract or commitment that involves revenue or expenses in excess of $200,000, throughout the life of the Contract up to and including September 30, 2007, individually and is not otherwise described cancelable without penalty within 30 days.
(b) Each Material Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or any of its Subsidiaries, enforceable against each of the Parties thereto in this Section 4.16(a) accordance with its terms, except as limited by laws of general application relating to bankruptcy, insolvency and the relief of debtors, and is in full force and effect with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge Knowledge of the Sellers, any other party thereto. The Company and its Subsidiaries are in compliance with and have not materially breached, violated or defaulted under, or received written (including, without limitation, email) or explicit oral notice that they have breached, violated or defaulted under, any of the terms or conditions of any such Material Contract, nor to the Knowledge of the Sellers is any party obligated to the Company or its Subsidiaries pursuant to any such Material Contract subject to any breach, violation or default thereunder, nor do the Sellers or the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or any such other party. True and complete copies of each Material Contract (whether or not disclosed in the Sellers’ Disclosure Schedule) have been delivered or made available to Purchaser.
(c) The Company and its Subsidiaries have fulfilled all material obligations required to have been performed by the Company and its Subsidiaries prior to the date hereof pursuant to each Material Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is bound, and to the Knowledge of the Sellers or the Company, each other party theretowithout giving effect to the Acquisition, the Company or its Subsidiaries will fulfill, when due, all of its obligations under such Material Contracts that remain to be performed after the date hereof.
(d) There are no, and neither the Sellers nor the Company has any Knowledge of any threatened, material disputes or disagreements with respect to any Material Contract to which the Company or any of its Subsidiaries is in full force and effect, a party or any of their respective properties or assets (whether tangible or intangible) is subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or other than routine collection matters in the aggregateOrdinary Course of Business not involving any substantive dispute.
(e) No royalties, a fees, honoraria, volume-based, milestone or other payments are payable by the Company Material Adverse Effector its Subsidiaries to any Person by reason of the ownership, neither use, sale, licensing, distribution or other exploitation of any Intellectual Property relating to the conduct or operation of the business of the Company or its Subsidiaries or the delivery or provision of any products, services or rights delivered or provided thereby or thereunder, except for paid-up obligations relating solely to end-user operating systems and application Software and commercial Software used in connection with the Company’s infrastructure and workstations.
(f) Neither the Company nor any of its Subsidiaries have granted any other Person any exclusive right to manufacture, have manufactured, assemble, license, sublicense or sell any Company Products or to provide the services or proposed services of the business of the Company or any of its Subsidiaries.
(g) Each Material Contract is in breach or default under any written form and has been provided to Purchaser in its entirety.
(h) Excluding the Company Contract norConvertible Debentures, to the knowledge of the Company, is any other party to any such all outstanding Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentIndebtedness may be prepaid without penalty.
Appears in 2 contracts
Sources: Share Transfer Agreement, Share Transfer Agreement (Dolby Laboratories, Inc.)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete listExcept for this Agreement, as of the date hereof, neither the Company nor any of this Agreementits Subsidiaries is a party to or bound by any agreement, oflease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) that is a lease, easement or other instrument constituting the chain of title to the properties and assets onshore in the United States owned or held by Company or any of its Subsidiaries) (each a “Contract”) that:
(i) each contract would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any contingent payment obligations or similar payment obligations (including any “earn-out” obligations) that would require payments to any person (other than this Agreementthe Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of the Parent) that involves a pending arising in connection with the acquisition or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires disposition by the Company or any of its Subsidiaries of any business which payment obligations would reasonably be expected to dispose of result in future payments by the Company or acquire assets its Subsidiaries that exceed, individually or properties with a fair market value in excess of the aggregate, $25,000,00025 million;
(iiiii) each contract that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any right material obligations that, after the Effective Time, would run to the favor of first refusal or right of first offer or that limits the ability of any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of the Parent);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $25 million (excluding any plugging and abandonment, decommissioning and/or asset retirement bonds or any of their respective Affiliates to own, operate, sell, transfer, pledge guarantees) or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment B) is a guarantee by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by of such indebtedness of any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (person other than the Company or a wholly-owned Subsidiary of the CompanyCompany in excess of $25 million (excluding any plugging and abandonment, decommissioning and/or asset retirement bonds or guarantees);
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company; provided that, in each contract case of (A) and (B), with respect to any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) related to any properties or assets onshore in the United States, only to the extent that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposessuch rights would be triggered by the transactions contemplated under this Agreement;
(vi) each employment contract was entered into to settle any material litigation and which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without imposes material liability to ongoing obligations on the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity limits or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation to declare or pay dividends or make distributions in respect of the Transactions) to compete in any line of business their capital stock, partner interests, membership interests or with any Person or geographic areaother equity interests;
(viii) each is a material partnership, limited liability company, joint ventureventure or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or strategic alliance agreement to joint venture in which the Company owns, directly or a indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest capital in excess of $25 million, other than with respect to any wholly-owned Subsidiary of the Company is a party (other than any such agreement solely between or among wholly-owned Subsidiary of the Company and its wholly owned Subsidiaries)MLP;
(ix) each contract between relates to the acquisition or among the Company disposition of any business or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate assets (other than a wholly owned Subsidiary the purchase and sale or marketing of Hydrocarbons in the Companyordinary course of business consistent with past practice) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has any liability in excess of $25 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) with a “Contract Area” greater than 10,000 gross surface acres or (B) creates any material presently unexpired area of mutual interest (AMI) in favor of a person other than the indemnitor;Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of Parent and sets forth an area of mutual interest area of greater than 10,000 gross surface acres; or
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this is a Contract required to be set forth on Section 4.16(a3.21(a)(xi) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected of the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyDisclosure Schedules.
(b) Collectively, the contracts set forth Each such Contract described in Schedule 4.16(aclauses (i) through (xi) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and binding obligation of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable by the Company or the applicable Subsidiary, subjectin each case, as to enforceability, subject to Creditors’ Rights. Except , except as would not reasonably be expected to havenot, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract Subsidiaries, nor, to the knowledge of the Company, is any other party to any such Company a Material Contract is in breach or violation of any provision of, or in default thereunderunder, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Complete and accurate copies Except for any Material Contracts filed without redaction as exhibits to the Company SEC Documents or the MLP SEC Documents, a copy of each Company Material Contract in effect as of the date hereof (including all amendments and modifications) have has previously been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Noble Energy Inc), Merger Agreement (Noble Energy Inc)
Material Contracts. (a) Schedule 4.16(a6.15(a) of the Company Disclosure Letter sets forth contains a true complete and complete accurate list, as of the date hereof, of this Agreementeach of the following Contracts, of:to which any Acquired Entity is a party or to which any of them or any of their properties is bound (each such Contract, a “Material Contract”):
(i) each contract (other than this Agreement) that involves a pending any Contract involving payments by or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or to any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value Acquired Entity in excess of $25,000,00050,000;
(ii) each contract any Contract that grants constitutes a purchase order or other Contract relating to the sale, purchase, lease or provision by any right Acquired Entity of first refusal goods or right services in excess of first offer or $25,000 in any 12 month period;
(iii) any Contract under which any Acquired Entity has agreed to indemnify any third Person in any manner, other than such Contracts that limits were made in the ability ordinary course of business consistent with past practice of the CompanyAcquired Entities, or to share the Tax liability of any third Person;
(iv) any Contract pursuant to which any Acquired Entity is required to make on or after the date of the Latest Balance Sheet a capital expenditure, capital addition or betterment in excess of $50,000 in the aggregate;
(v) any power of attorney (other than powers of attorney given in the ordinary course of business with respect to routine export, Tax or securities matters);
(vi) any bond, indenture, note, loan or credit agreement or other Contract relating to indebtedness for borrowed money, any Subsidiary Contract creating a capital lease obligation, any Contract for the sale of Accounts Receivable, any Contract relating to the direct or indirect guarantee or assumption of the Company obligations of any other Person or any Contract requiring any Acquired Entity to maintain the financial position of any other Person;
(vii) any outstanding loan or advance by any Acquired Entity to, or investment by such Person in, any Person, or any Contract or commitment relating to the making of any such loan, advance or investment (excluding trade receivables and advances to employees for normally incurred business expenses each arising in the ordinary course of business consistent with past practice);
(viii) any Contract involving interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative or hedging Contracts;
(ix) any Contract providing for the deferred payment of any purchase price (other than trade payables incurred in the ordinary course of business consistent with past practice) including any “earn out” or other contingent fee arrangement;
(x) any Contract creating a Lien, other than any Permitted Lien, on any of the Acquired Assets that will not be discharged at or prior to the Closing;
(xi) any Contract purporting to limit or restrict the freedom of any Acquired Entity or, to the Knowledge of any MCE Party, any of their respective Affiliates officers, directors or key employees (A) to engage in any line of business, (B) to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any businessesasset, securities (C) to compete with any Person or assets (D) to engage in any business or activity in any geographic region;
(xii) any Contract that grants any Person the exclusive right to sell products or provide services within any geographical region other than a Contract that (1) is terminable by any party thereto giving notice of termination to the other party thereto not more than 30 days in advance of the proposed termination date and (2) even if so terminable, contains no post-termination obligations (other than provisions requiring notice of payment obligations for pre-termination sales or consent to assignment services), termination penalties, buy-back obligations or similar obligations;
(xiii) any Contract under which any Acquired Entity is the lessor of, or makes available for use by any counterparty theretothird Person, any tangible personal property owned by any Acquired Entity, in each case for an annual rent in excess of $50,000;
(xiv) any Contract constituting a partnership, joint venture or other similar Contract (other than the Organizational Documents of the Acquired Companies);
(iiixv) each contract any Contract (other than the Organizational Documents of the Acquired Companies) that contains restrictions with respect to the payment of any distribution in respect of any Acquired Entity’s Equity Interests or the purchase, redemption or other acquisition of any such Equity Interests;
(xvi) any Contract (other than the Organizational Documents of the Acquired Companies) relating to outstanding Indebtedness (the acquisition or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured divestiture by any asset) Acquired Entity of Equity Interests, assets or business of any Person, which provides for consideration or payments in excess of $15,000,000, other than agreements solely among the Company 100,000 and its wholly owned Subsidiaries;
(iv) other than contracts entered into is not made in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made ;
(xvii) any advance, loan, extension of credit or capital contribution to, or other investment in, any Person Contract (other than the Company or a Subsidiary Organizational Documents of the Company);
(vAcquired Companies) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of between any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the CompanyAcquired Entity, on the one hand, and the Company Manager present or former officers, directors, stockholders, other equity holders of any officer, director Acquired Entity or Affiliate (other than a wholly owned Subsidiary Affiliates of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, Acquired Entity on the other hand;
(xxviii) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorContract listed on Schedule 6.09(a);
(xixix) each vendorany Contract containing provisions applicable upon a change of control of any Acquired Entity;
(xx) any Contract granting to any Person a right of first refusal, supplier first offer or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant other right to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or purchase any of its Subsidiaries will be required the assets of any Acquired Entity;
(xxi) any Contract requiring any Acquired Entity to pay fees, expenses or other costs in excess make a payment as a result of $50,000 following the Effective Timeconsummation of the transactions contemplated hereby; and
(xiixxii) each “any other agreement which is material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyAcquired Entities taken as a whole.
(b) Collectively, the contracts set forth True and complete copies (including all amendments) of each Material Contract have been made available to Acquirer. Except as disclosed in Schedule 4.16(a6.15(b): (i) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company each Material Adverse Effect, each Company Contract is the legal, validvalid obligation of each Acquired Entity and party thereto and to the Knowledge of any MCE Party, any other Person party thereto, binding and enforceable against each such Acquired Entity and, to the Knowledge of any MCE Party, any other Person party thereto, in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, subject to Creditors’ Rights. Except as would not reasonably be expected to have; (ii) no Material Contract has been terminated, individually or in the aggregate, a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract Acquired Entity nor, to the knowledge Knowledge of the Companyany MCE Party, is any other party to any such Company Contract Person is in material breach or default thereunder. Complete , and accurate copies to the Knowledge of each Company Contract any MCE Party no event has occurred that with notice or lapse of time, or both, would constitute a material breach or default, or permit termination, modification in effect as any manner materially adverse to an Acquired Entity or acceleration thereunder; (iii) no party has asserted or has (except by operation of the date hereof (including all amendments and modificationslaw) have been furnished any right to offset, discount or otherwise made available ▇▇▇▇▇ any amount owing under any Material Contract except as expressly set forth in such Material Contract; and (iv) there are no material waivers regarding any Material Contract that have not been disclosed in writing to ParentAcquirer.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (New Source Energy Partners L.P.)
Material Contracts. (a) Schedule 4.16(aAs of the date hereof, Seller has made available true and complete copies, together with all amendments, supplements and modifications thereto (or, with respect to any oral Contracts, true and complete written descriptions) of all Contracts to which Seller (or, insofar as it relates to the Business, any of its Affiliates) is a party that relate to the Business and has set forth such Contracts in Section 4.10(a) of the Company Seller Disclosure Letter sets forth a true and complete list, as of Schedule (the date of this Agreement, of“Material Contracts”) under the following categories:
(i) each contract (mortgages, notes, debentures, indentures, letters of credit, loan agreements and any other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires Contracts related to any Indebtedness to which the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000Acquired Assets have been encumbered;
(ii) each contract that grants any right of first refusal or right of first offer or that limits guarantees to the ability Contracts listed in Section 4.10(a)(i) of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)Seller Disclosure Schedule;
(iii) each contract relating any Contract that (A) grants any rights to outstanding Indebtedness Manufacture, sell or distribute Quill™ or (B) grants “most favored nation” status or commitments or guarantees in respect thereof) equivalent preferential pricing terms of the Company or Quill™ to any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned SubsidiariesPerson;
(iv) other than contracts entered into in the ordinary course Contracts with suppliers of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company)Raw Materials and packaging components for Quill™;
(v) each contract that involves Contracts for the purchase of inventories, equipment, Raw Materials, supplies, services or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating utilities related to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposesQuill™;
(vi) each employment contract royalty Contracts (whether relating to which the Company Seller Patents, Quill™ Know-How or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its SubsidiariesAcquired Intellectual Property rights);
(vii) any Contract pursuant to which a Seller Party (A) has acquired any license or other right to use any Acquired Intellectual Property, or (B) has granted to any Third Party any license or other right to use any Acquired Intellectual Property;
(viii) distributor Contracts for Quill™ (the “Distributor Contracts”);
(ix) supply and/or distribution Contracts for Quill™;
(x) product development Contracts, research and development Contracts, collaboration Contracts, in each contract containing case, related to Quill™;
(xi) Contracts restricting any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company Seller Party or any Affiliate from developing, Manufacturing or Commercializing Quill™ or limiting the freedom of its Subsidiaries (including Parent upon consummation of the Transactions) any Seller Party to compete engage in any line of business or to compete with any other Person or geographic areain any geographical area with respect to Quill™;
(viiixii) each partnership, joint venture, limited liability company or strategic alliance any collective bargaining agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective TimeContract with any labor organization, union or association; and
(xiii) any outstanding written commitment to enter into any agreement of the type described in subsections (i) through (xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company4.10(a).
(b) CollectivelyThe applicable Seller Party has performed all obligations required to be performed by it under the Material Contracts, the contracts set forth in Schedule 4.16(a) and none of the Company Disclosure Letter are herein referred Seller Parties is in breach of or default under the terms of any Material Contract, except where such failure to as the “Company Contracts.” Except as perform or such breach or default has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms Effect on the Company and each Business. No Seller Party has received any written notice from any counterparty to any Material Contract that such counterparty intends to terminate such Material Contract where such termination would have a Material Adverse Effect on the Business. To the Knowledge of its Subsidiaries that is a party thereto and, to the knowledge of the CompanySeller, each other party theretoto the Material Contracts has performed all obligations required to be performed by it under the Material Contracts, and no other party to any Material Contract is in full force breach of or default under the terms of any Material Contract, except where such failure to perform or such breach or default has not had and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectEffect on the Business. Assuming due authorization, neither execution and delivery by each counterparty to each of the Company nor any Material Contracts, each Material Contract is a valid and binding obligation of the Seller Parties, as applicable, enforceable in accordance with its Subsidiaries is in breach or default under any Company Contract norterms, and, to the knowledge Knowledge of the CompanySeller, is any in full force and effect, except as has not had and would not have, individually or in the aggregate, a Material Adverse Effect on the Business or except as may be limited by Bankruptcy Laws and other party to any such Company Contract in breach or default thereunder. Complete and accurate copies similar Laws of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished general applicability relating to or otherwise made available affecting creditors’ rights, and to Parentgeneral equitable principles.
Appears in 2 contracts
Sources: Asset Sale and Purchase Agreement (Angiotech Pharmaceuticals Inc), Asset Sale and Purchase Agreement (Angiotech Pharmaceuticals Inc)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the No Group Company is a party other than at-will arrangements that can be terminated at to or obligated under:
(a) any time contract which obligates the Group for any payments in excess of 250,000 RMB, in the aggregate, and which is not terminable by any Group without material liability to the Company additional payment or any penalty within ninety (90) days of its Subsidiariesdelivery of notice of such termination;
(viib) each any contract containing which restricts any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Group Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete from engaging in any line of business or competing with any Person or in any geographic arearegion;
(viiic) each any partnership, joint venture, limited liability company agreement, joint venture or strategic alliance other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which the Company is not wholly-owned by one or a Subsidiary of the Company is a party more Group Companies;
(d) any contract (other than any such agreement solely between or among the Company Group Companies) under which Indebtedness in excess of 250,000 RMB is outstanding or pursuant to which any property or asset of the one or more Group Companies having a book value of more than 250,000 RMB is mortgaged, pledged or otherwise subject to an Encumbrance or any contract restricting the incurrence of Indebtedness or the incurrence of Encumbrances or restricting the payment of dividends;
(e) any contract entered into within three (3) years prior to the date hereof for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of 250,000 RMB and its wholly owned Subsidiariesany term sheets or letters of intent in effect and not expired as of the date hereof, whether or not binding, relating to any of the foregoing in this clause (e);
(ixf) other than contracts for ordinary repair and maintenance, any contract relating to the development or construction of, or additions or expansions to, the Leased Real Properties, under which the Group Companies have, or expect to incur, in the aggregate one or more obligations in excess of 250,000 RMB in the aggregate that have not been satisfied as of the date hereof;
(g) any contract to which any Group Company has continuing indemnification obligations or potential liability under any purchase price adjustment that, in each case, could reasonably be expected to result in future payments by the Group Companies in the aggregate, of more than 250,000 RMB or any contract between relating to the settlement or among proposed settlement of any Legal Action, which involves the issuance of equity securities or payment of an amount, in any such case, having a value of more than 250,000 RMB;
(h) any contract for the employment of, or receipt of any services from, any director, officer or other employee on a full-time, part-time, consulting or other basis providing annual case compensation from the Group Companies in excess of 250,000 RMB in the aggregate;
(i) any contract which relates to any Intellectual Property;
(j) any contract (other than contracts referenced in clause (a) through (i) of this Section 4.15) which by its terms call for payments by one or more of the Group Companies in excess of 250,000 RMB in the aggregate;
(k) any contract with any current officer or director of any Group Company or any Subsidiary Affiliates of any Group Company, including any JZH Holder; or
(l) any contract that requires a consent to or otherwise contains a provision relating to a “change of control’, or any contract that would prohibit or delay the consummation of the Companytransactions contemplated by this Agreement, on the one handor that would trigger, and the give rise to, accelerate or augment any liabilities or terminate or modify any rights of any Group Company Manager or any officer, director or Affiliate (other than as a wholly owned Subsidiary result of the Companyconsummation of the transactions contemplated hereby (the contracts described in clause (a) through (k) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time 4.15 and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts those agreements set forth in Schedule 4.16(a4.12(a) of the Company Disclosure Letter are herein referred to as Schedules together with all exhibits and schedules thereto collectively, the “Company Material Contracts”).” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent.
Appears in 2 contracts
Sources: Share Exchange Agreement (SolarMax Technology, Inc.), Share Exchange Agreement (SolarMax Technology, Inc.)
Material Contracts. (a) Schedule 4.16(aSection 4.11(a) of the Company Disclosure Letter sets forth a true and complete list, lists as of the date of this Agreement, and the Company has made available to the Buyer Parties copies that are true, correct and complete in all material respects of:
, all contracts, agreements, commitments, arrangements, licenses (iincluding with respect to Intellectual Property Rights), leases (including with respect to personal property, but excluding real property leases) each contract (and other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires instruments to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective personal properties or assets is bound (but which, for the avoidance of doubt, shall not include Company Benefit Plans) that:
(i) would be required to dispose be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or acquire assets or properties with disclosed by the Company on a fair market value in excess of $25,000,000Current Report on Form 8-K;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision contain covenants that materially restricts limit the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or in any geographic area, or to sell, supply or distribute any of the Company’s services or products (including any non-compete, exclusivity, or “most-favored-nation” provisions) or which, following the consummation of the Merger, could materially restrict or purport to restrict such ability of the Surviving Entities or HoldCo;
(iii) provide for or govern the formation, creation, operation, management or control of any strategic partnership or joint venture of the Company and its Subsidiaries;
(iv) along with other similar licenses or other grant of Company Intellectual Property, agreements, contain a license or other grant of rights to use Intellectual Property Rights that by its terms calls for more than $500,000 collectively in royalties for such license or rights to use such Intellectual Property Rights to or from the Company or its Subsidiaries (including covenants not to ▇▇▇ and patent cross-licenses) excluding with respect to licenses or rights granted to the Company or its Subsidiaries, licenses for commercially available software or “open source software” or under a similar licensing or distribution model;
(v) involve the joint development of products or technology with a third party with products or technology requiring an investment by the Company in excess of $500,000;
(vi) other than solely among wholly owned Subsidiaries of the Company, relate to (A) Indebtedness having an outstanding principal amount in excess of $5,000,000 or (B) conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case, in connection with which the aggregate actual contingent obligations of the Company and its Subsidiaries under such contract are greater than $5,000,000;
(vii) were entered into after December 30, 2016, or have not yet been consummated, and involve the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interests of another Person;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of by their terms call for aggregate payments by the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates to the Company or any of its Subsidiaries under such contract of more than $1,000,000 in any one (1) year (including by means of royalty payments) other than contracts made in the ordinary course of business consistent with past practice and other than any Company Benefit Plan;
(ix) are with respect to indemnify any past or present directors, officers, or employees of acquisition by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that has (A) cannot be voluntarily terminated pursuant to its any continuing indemnification obligations or (B) any “earn-out” or other contingent payment obligations, in each case, greater than $1,000,000; or
(x) are entered into between any present or former director or executive officer of the Company (or any of their Affiliates), on the one hand, and the Company or a Subsidiary of the Company, on the other hand, and that by their terms within sixty call for in excess of $100,000 in potential future payments, other than (60A) days after the Effective Time for purposes of employee benefits or relocation and (B) items which would not arise to a related party transaction under which it Item 404 of Regulation S-K of the Exchange Act. Each contract of the type described in clauses (i) through (x) of this Section 4.11(a) is reasonably expected referred to herein as a “Company Material Contract.”
(b) To the extent not available in any report, statement, form, schedule, exhibit or other document filed or furnished by the Company or any of its Subsidiaries will be required with the SEC, the Company has delivered or made available to pay feesParent a true, expenses or other costs in excess correct and complete copy of $50,000 following the Effective Time; and
(xii) each “material contract” written Company Material Contract (as amended to date), subject to the confidentiality obligations therein to the extent that (i) such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise confidentiality obligations are described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a4.11(a) of the Company Disclosure Letter are herein referred and (ii) Company has unsuccessfully used its commercially reasonable efforts to as obtain a waiver of such confidentiality obligations from the “counterparty, listed in Section 4.11(a) of the Company Contracts.” Disclosure Letter. Except as would not reasonably be expected to haveas, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect with respect to the Company: (i) each Company Material Adverse Effect, each Company Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and each or the Subsidiary of its Subsidiaries the Company that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable in accordance with its terms, subjectexcept to the extent that they have previously expired in accordance with their terms; (ii) the Company, as to enforceabilityits Subsidiaries and, to Creditors’ Rights. Except as would not reasonably the Knowledge of the Company, each other party thereto, have performed and complied with all obligations required to be expected to have, individually performed or in the aggregate, a complied with by them under each Company Material Adverse Effect, neither Contract; and (iii) there is no default under any Company Material Contract by the Company nor or any of its Subsidiaries is in breach or default under any Company Contract noror, to the knowledge Knowledge of the Company, is by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries or, to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as the Knowledge of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to ParentCompany, by any other party thereto.
Appears in 2 contracts
Sources: Merger Agreement (Delek US Holdings, Inc.), Merger Agreement (Alon USA Energy, Inc.)
Material Contracts. (a) Schedule 4.16(a) Section 2.19 of the Company Disclosure Letter sets forth contains a true and complete list, as list of the date of this Agreement, of:
(i) each contract all Contracts (other than this AgreementCompany Employee Plans) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a any Company Subsidiary of the Company is a party to or bound, on the one hand, and a third party is a party to or bound, on the other than at-will arrangements hand, and that can be terminated at fall within any time without material liability to of the following categories (each, a “Material Contract”):
(a) each Contract with a customer or distributor for the sale or license by the Company or any Company Subsidiary of its Subsidiariesmaterials, supplies, goods, products, services, technology or other assets involving annual payments to the Company and the Company Subsidiaries in excess of $500,000;
(viib) each contract containing Contract with a supplier or other vendor for the purchase or license by the Company or any non-competeCompany Subsidiary of materials, exclusivity supplies, goods, products, services, technology or similar type other assets involving annual payments by the Company or the Company Subsidiaries in excess of provision that materially $500,000;
(c) each Contract involving the exclusive license of Intellectual Property owned by the Company or any Company Subsidiary not terminable at the Company’s or Company Subsidiary’s election;
(d) each Contract, other than any Contract listed in Section 2.9 of the Company Disclosure Letter, (i) which limits or restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) Company Subsidiary to engage or to compete in any line of business or with any Person generally or in any geographic area, or (ii) which could reasonably be expected to so limit the freedom of the Company or any Affiliate after the Effective Time based solely on facts attributable to the Company or its Affiliates immediately prior to the Effective Time;
(viiie) each lease (whether of real or personal property) providing for annual rentals in excess of $50,000;
(f) each partnership, joint venture, limited liability company venture or strategic alliance other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)arrangement;
(ixg) each contract between Contract relating to the acquisition or among disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) which has any outstanding material obligation owed by or to the Company or any Subsidiary Company Subsidiary;
(h) each Contract relating to Indebtedness or the deferred purchase price of property (in each case, whether incurred, assumed, guaranteed, or secured by any asset), except any such Contract with an aggregate outstanding principal amount not exceeding $50,000 and which may be prepaid at the Company’s or Company Subsidiary’s election on not more than 30 days notice;
(i) any development or collaboration Contract for development of products or services for the Company or any of the Company, on the one hand, and Company Subsidiaries requiring payments by the Company Manager or any officerof the Company Subsidiaries in excess of $100,000;
(j) any Contract with any Affiliate of the Company (or any Company Subsidiary), with any director or Affiliate (other than a wholly owned Subsidiary officer of the CompanyCompany or any Company Subsidiary, or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such director or officer;
(k) any employment or consulting Contract not terminable at the option of the Company without penalty or more than 30 days notice; or
(l) any employment or consulting Contract or any other Contract with severance, change in control or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries or Company Subsidiary to make any of their respective “associates” or “immediate family” members (payment as such terms are defined in Rule 12b-2 and Rule 16a-1 a result of the Exchange Act) transactions contemplated by this Agreement, termination of employment or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as both. Each such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subjectand is valid, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually binding and enforceable against the Company or in the aggregate, a Company Material Adverse EffectSubsidiary party thereto in accordance with its terms, neither except in each case as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar Legal Requirements affecting or relating to creditors’ rights generally and principles of equity. None of the Company nor any of its Subsidiaries Company Subsidiary is in breach or default under or in material breach of any Company Contract norMaterial Contract, and to the knowledge Knowledge of the Company, is any other no third party to any Material Contract is in default under or in material breach of such Material Contract. The Company Contract in breach or default thereunderthe Company Subsidiary party thereto has performed and is performing all material obligations required to be performed by it under the Material Contracts. Complete The Company has not received any written notice of an intention to terminate any of the Material Contracts by any of the parties to any of the Material Contracts. True and accurate complete copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) Material Contracts have been furnished to provided or otherwise made available to ParentAcquiror (or Acquiror’s Representatives).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Affymetrix Inc), Merger Agreement (Affymetrix Inc)
Material Contracts. (a) Schedule 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of hereof, except for this Agreement, of:
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) none of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $15,000,000, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company subsidiaries is a party other than at-will arrangements that can be terminated at to or bound by any time without material liability to the Company or any of its Subsidiaries;Contract:
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(ai) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will would be required to pay fees, expenses or other costs in excess of $50,000 following be filed by the Effective Time; and
(xii) each Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Securities Act;
(ii) under which the Company or any of its subsidiaries is, or is reasonably likely to be, entitled to receive revenues of more than $75,000 in any calendar year;
(iii) under which the Company or any of its subsidiaries is or is reasonably likely to become subject to any obligation to pay a liability of more than $75,000 in any calendar year;
(iv) that creates a Lien on (A) any property or asset of the Company or any of its subsidiaries other than Permitted Liens or (B) any Shares;
(v) that constitutes a Real Property Lease;
(vi) under which the Company or any of its subsidiaries has granted or received a license or sublicense or under which the Company or such subsidiary is obligated to pay, or has the right to receive, a royalty, license fee or similar payment, in each case that is material to the Company;
(vii) between the Company or any of its subsidiaries, on the one hand, and any person that holds more than 5% of the Company Common Stock, or any Related person or affiliate of any such person, on the other;
(viii) involving a share of profits or losses by the Company or any of its subsidiaries with any other person, including any joint venture, partnership or similar agreement;
(ix) containing covenants that in any way purport to restrict the business activity of the Company or any of its subsidiaries or limit the freedom of the Company or any of its subsidiaries to engage in any line of business or to compete with any person;
(x) other than solely among wholly-owned subsidiaries of the Company, governing the borrowing of money, the Guarantee or the repayment of Indebtedness or conditional-sale arrangements or interest-rate- or currency-hedging activities, in each case, in an amount in excess of $75,000;
(xi) granting to any person a first refusal, a first offer or similar preferential right to purchase or acquire any material right, asset or property of the Company or any of its subsidiaries or any Shares;
(xii) involving a material distributor, sales representative or broker arrangement that by its express terms is not otherwise described terminable by the Company or any of its subsidiaries at will or by giving notice of 30 days or less, without liability;
(xiii) involving the acquisition by the Company or any of its subsidiaries of any business enterprise whether by stock or asset purchase or otherwise;
(xiv) entered into by the Company or any of its subsidiaries outside the ordinary course of business and under which the Company and its subsidiaries, taken as a whole, could have liability in this Section 4.16(aan aggregate amount in excess of $75,000;
(xv) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and the subsidiaries, taken as a whole; or
(xvi) with respect to any acquisition pursuant to which the Company or any Subsidiary of the Companyits subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $20,000. Each such Contract described in clauses (i) through (xvi) above is referred to herein as a “Material Contract.”
(b) Collectively, the contracts set forth in Schedule 4.16(a) Each of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or Material Contracts is in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, full force and effect and valid and binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a subsidiaries party thereto and, to the knowledge of the Company, each other party thereto, and . There is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually no material breach or in the aggregate, a Company material default under any Material Adverse Effect, neither Contract by the Company nor or any of its Subsidiaries is in breach or default under any Company Contract norsubsidiaries or, to the knowledge of the Company, is by any other party, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material default thereunder by the Company or any of its subsidiaries or, to the knowledge of the Company, by any other party. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any other party to any such Company Material Contract in breach has terminated, or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished purported to or otherwise made available to Parentterminate, any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Material Contracts. (a) Schedule 4.16(aExcept for such Chaparral Material Contracts that Chaparral has filed with the SEC as a material contract as required by Item 601(b)(10) of Regulation S-K, Section 2.14 of the Company Chaparral Disclosure Letter Schedules sets forth a true list of, and Chaparral has made available to Parent, true, correct and complete listcopies of, each written contract, agreement, commitment, arrangement, lease, license, permit or plan and each other instrument to which Chaparral or any Subsidiary is a party or by which Chaparral or any Subsidiary is bound as of the date of this Agreementhereof (each, ofa “Chaparral Material Contract”) that:
(i) each contract (other than this Agreement) that involves a pending or contemplated mergeris described in the Chaparral Financials for the year ended December 31, business combination, acquisition, purchase, sale or divestiture that requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties with a fair market value in excess of $25,000,0002008;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)intentionally omitted;
(iii) each contract relating to outstanding Indebtedness contains covenants that materially limit the ability of Chaparral or any Subsidiary (or commitments or guarantees in respect thereof) which, following the consummation of the Company Merger, could materially restrict the ability of Parent, Chaparral, the Subsidiaries or any of its Subsidiaries their affiliates): (A) to compete in any line of business or with any Person or in any geographic area or to sell, supply, price, develop or distribute any service, product or asset, including any non-competition covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire an interest in any other entity, except, in each case, for any such contract that may be canceled without any penalty or other liability to Chaparral or any Subsidiary upon notice of 60 days or less;
(iv) involves any joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of Chaparral, taken as a whole;
(v) involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(vi) relates to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) having an outstanding principal amount in excess of $15,000,0001,000,000 with respect to any Indebtedness;
(vii) was entered into by Chaparral or any Subsidiary and has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a substantial amount of the assets or capital stock or other equity interests of another Person, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts entered into acquisition or disposition of assets in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward swap or other hedging transaction of any type, except for contracts entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or consistent with any Person or geographic areapast practices;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement by its terms calls for aggregate payments by Chaparral under such contract of more than $3,000,000 with respect to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries)payments;
(ix) each contract between with respect to any material agreement for the acquisition or among disposition, directly or indirectly (by merger or otherwise), of a substantial amount of the Company assets or capital stock or other equity interests of another Person, pursuant to which Chaparral or any Subsidiary of the Company, on the one hand, and the Company Manager has: (A) any continuing indemnification obligations or (B) any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associatesearn-out” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) or of the Company Manager, on the other handcontingent payment obligations;
(x) each contract that obligates the Company or involves any of its Subsidiaries to indemnify any past or present managers, directors, officers, executive officers or key employees of the Company Chaparral that cannot be cancelled by Chaparral within 60 days’ notice without liability, penalty or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitorpremium;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company obligates Chaparral or any of its Subsidiaries will be required Subsidiary to pay fees, expenses provide indemnification or other costs a guarantee in excess of $50,000 following the Effective Time; and3,000,000 with respect to any obligation;
(xii) each “material contract” obligates Chaparral or any Subsidiary to make any capital commitment or capital expenditure (including pursuant to any joint venture) in excess of $3,000,000 with respect to such obligation;
(xiii) relates to the development, ownership, licensing or use of any Intellectual Property (as such term is defined in Section 2.15) material to the business of Chaparral or any Subsidiary, other than “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally, with license, maintenance, support and other fees of less than $500,000 per year (collectively, “Off-the-Shelf Software Agreements”);
(xiv) provides for any standstill arrangements; or
(xv) Chaparral has filed as a material contract with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.K.
(b) Collectively, the contracts set forth in Schedule 4.16(aWith respect to each Chaparral Material Contract: (i) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company each Chaparral Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on all material respects against Chaparral or the Company and each of its Subsidiaries that is a party thereto Subsidiaries, as the case may be, and, to Chaparral’s knowledge, the knowledge of the Company, each other party thereto, and is in full force and effecteffect (except as such enforcement may be limited by the Enforceability Exceptions); (ii) the consummation of the transactions contemplated by this Agreement will not affect the terms, subject, as to enforceabilityvalidity or enforceability of such Chaparral Material Contract against the Surviving Company or any Subsidiary and, to Creditors’ Rights. Except as would not reasonably be expected to haveChaparral’s knowledge, individually or in the aggregate, a Company Material Adverse Effect, other party thereto; (iii) neither the Company Chaparral nor any of its Subsidiaries Subsidiary is in breach or default in any material respect, and no event has occurred which, with the passage of time or giving of notice or both, would constitute such a breach or default by Chaparral or any Subsidiary, or permit termination or acceleration by the other party, under any Company Contract norChaparral Material Contract; (iv) to Chaparral’s knowledge, to the knowledge of the Company, is any no other party to any such Company Chaparral Material Contract is in breach or default thereunder. Complete in any material respect, and accurate copies no event has occurred which, with the passage of each Company Contract in effect as time or giving of notice or both, would constitute such a breach or default by such other party, or permit termination or acceleration by Chaparral or any Subsidiary, under such Chaparral Material Contract, and (v) the consummation of the date hereof (including all amendments and modifications) have been furnished transactions contemplated by this Agreement will not obligate Chaparral or any Subsidiary to or otherwise made available to Parentmake any payments thereunder.
Appears in 2 contracts
Sources: Merger Agreement (United Refining Energy Corp), Merger Agreement (Chaparral Energy, Inc.)
Material Contracts. (a) Except as set forth on Schedule 4.16(a5.18(a) of the Company Disclosure Letter sets forth Schedule, neither the Company nor any of its Subsidiaries is a true and complete list, as party to nor are their assets or properties bound by any Contract of the date following nature (such Contracts as are set forth or required to be set forth on Schedule 5.18(a) of this Agreement, of:the Company Disclosure Schedule being “Company Material Contracts”):
(i) each contract (other than this Agreement) that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires any Contract pursuant to which the Company or any of its Subsidiaries has provided funds to dispose of or acquire assets made any loan, capital contribution or properties with a fair market value in excess of $25,000,000;
(ii) each contract that grants other investment in, or assumed any right of first refusal liability or right of first offer or that limits the ability of the Companyobligation of, any Subsidiary of the Company Person, including take-or-pay Contracts or keepwell agreements, or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract Contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) evidencing indebtedness of the Company or any of its Subsidiaries (whether incurredSubsidiaries, assumed, guaranteed or secured by any asset) in excess of $15,000,000including mortgages, other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) other than contracts grants of security interests, guarantees or notes, except for office equipment leases entered into in the ordinary course of business, each contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(vii) each contract that involves any Contract for the purchase of any debt or constitutes an interest rate cap, interest rate collar, interest rate swap equity security or other contract ownership interest of any Person, or agreement relating to a forward swap for the issuance of any debt or equity security or other hedging transaction ownership interest, or the conversion of any typeobligation, except for contracts entered instrument or security into for bona fide hedging purposes;
(vi) each employment contract to which the Company debt or a Subsidiary of the Company is a party equity securities or other than at-will arrangements that can be terminated at any time without material liability to ownership interests of, the Company or any of its Subsidiaries;
(iii) any lease, sublease or similar Contract under which (A) the Company or any of its Subsidiaries is a lessor or sublessor of real property owned by any other Person, or makes available for use by any Person, any portion of any premises otherwise occupied, leased or subleased by it, or (B) the Company or any of its Subsidiaries is a lessee or sublessee of, or holds or uses any real property owned by any other Person;
(iv) any lease, sublease or similar Contract under which (A) the Company or any of its Subsidiaries is a lessee or sublessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person, or (B) the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by it;
(v) any Contract with any customer, distributor or supplier;
(vi) any Contract with any Governmental Authority;
(vii) each contract containing any non-competeTax sharing or Tax allocation Contract;
(viii) any Contract with any Related Party of the Company or any of its Subsidiaries;
(ix) any employment or consulting Contract;
(x) any Contract that limits, exclusivity or similar type of provision that materially restricts purports to limit, the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or in any geographic area;
(viii) each partnershiparea or during any period of time, joint venture, limited liability company or strategic alliance agreement to which that restricts the Company or a Subsidiary right of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third person exclusive rights (including any exclusive license or right to use any Intellectual Property) or “most favored nation” status or any type of special discount rights;
(xi) any Contract providing for indemnification to or from any Person, except for such indemnification provisions granted to distributors, representatives, consultants or customers of the Company and its Subsidiaries pursuant to the Company’s or its Subsidiaries’ standard Contracts with such parties;
(xii) any royalty Contract and any Contract relating in whole or in part to any Intellectual Property;
(xiii) any joint venture or partnership, merger, asset or stock purchase or divestiture Contract (other than Contracts for the purchase or sale of assets in the ordinary course of business);
(ixxiv) each contract between any Contract relating to settlement of any administrative, judicial or among arbitration proceedings within the past five years;
(xv) any Contract that results in any Person holding a power of attorney from the Company or any Subsidiary of its Subsidiaries that relates to the Company, on the one hand, and the Company Manager or any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” businesses;
(xvi) any Contract, whether or “immediate family” members not made in the ordinary course of business that (A) involves a future or potential liability or receivable, as such terms are defined the case may be, in Rule 12b-2 excess of $100,000 on an annual basis or in excess of $250,000 over the current Contract term, or (B) has a term greater than one year and Rule 16a-1 of cannot be cancelled by the Exchange Act) Company or a Subsidiary of the Company Manager, on the other hand;without penalty or further payment and without more than 60 days’ notice; and
(xxvii) any other Contract not referenced in the foregoing clauses (i) through (xvi) that is material to the business, operations, assets, financial condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole.
(b) Except for terminations of Company Material Contracts contemplated by Sections 6.19 and 6.20, (i) each contract that obligates of the Company Material Contracts is valid, binding and in full force and effect and is enforceable against the Company or one of its Subsidiaries, and to the Knowledge of the Company, the other parties thereto, in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at Law), (ii) the Company or one of its Subsidiaries, if applicable, has performed all material obligations required to be performed by it under the Company Material Contracts and it is not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder, (iii) to the Knowledge of the Company, (A) no other party to any Company Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder, and (B) no event has occurred or circumstance or condition exists (with or without the lapse of time or the giving of notice, or both) that may contravene, conflict with, or result in a violation or breach of any Company Material Contract, result in the termination or in a right of termination or cancellation of, or accelerate the performance required by, or result in the triggering of any payment obligations under, or result in the creation of any Encumbrance upon any of its Subsidiaries to indemnify any past the assets or present directors, officers, or employees properties of the Company or any of its Subsidiaries pursuant under, or result in being declared void, voidable, or without further binding effect, or result in any other modification of or trigger any right or obligation under, any Company Material Contract or provisions thereof; (iv) no party to which the any Company Material Contract has given any written notice of an alleged breach thereof or any of its Subsidiaries is the indemnitor;
(xi) each vendor, supplier or consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time threatened such a breach; and (Bv) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Collectively, the contracts set forth in Schedule 4.16(a) of the Company Disclosure Letter are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under has received any written notice that any party to any Company Material Contract norintends to cancel or terminate such Company Material Contract, to renegotiate such Company Material Contract, or to exercise or not exercise any options thereunder, and, to the knowledge Knowledge of the Company, no such intent to cancel, terminate, renegotiate or exercise has been otherwise threatened.
(c) Except for terminations of Company Material Contracts contemplated by Sections 6.19 and 6.20, the execution and delivery by the Company of this Agreement and the Ancillary Agreements to which it is a party, and the consummation of the Transactions contemplated hereby and thereby in accordance with the terms hereof and thereof, will not violate, or conflict with, or result in a material breach of any provision of, or constitute a material default (or an event that, with notice or lapse of time or both, would constitute a material breach or default) under, or result in the termination or in a right of termination or cancellation of, or accelerate the performance required by, or result in the triggering of any payment obligations under, or result in the creation of any Encumbrance upon any of the assets or properties of the Company or its Subsidiaries under, or result in being declared void, voidable, or without further binding effect, or result in any other modification of or trigger any right or obligation under, any Company Material Contract or provision thereof.
(d) Except as set forth on Schedule 5.18(d) of the Company Disclosure Schedule, no consent of any party to any such a Company Material Contract is required in breach or default thereunder. Complete connection with the execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the Transactions.
(e) True, complete and accurate copies (or, as to oral Contracts, written summaries of each the terms), of the Company Contract in effect as of Material Contracts entered into on or prior to the date hereof (including all amendments and modifications) have been furnished to provided or otherwise made available to ParentParent and true, complete and accurate copies (or, as to oral Contracts, written summaries of the terms) of any Company Material Contracts entered into after the date hereof and prior to or on the Closing Date will be provided or made available to Parent promptly after being so entered into.
Appears in 2 contracts
Sources: Merger Agreement (Healthtronics, Inc.), Merger Agreement (Endocare Inc)