Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”): (i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company; (ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum; (iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000; (iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service; (v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company; (vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance; (vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000; (viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person; (ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement; (x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date; (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business; (xii) all Affiliate Contracts; (xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee; (xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company; (xv) all collective bargaining agreements entered into by the Company; (xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business; (xvii) any Contracts with any Governmental Authority to which the Company is a party; (xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time; (xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and (xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and (xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a). (b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule. (c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract. (d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Material Contracts. (a) Section 4.10(a5.17 of the Company Disclosure Letter sets forth a complete and accurate list of all notes, bonds, mortgages, indentures, deeds of trust, licenses, leases, agreements, contracts, commitments, arrangements, Permits, concessions, franchises, limited liability or partnership agreements or other instruments to which the Company or any of its Subsidiaries is a party, or by which they or any of their respective properties, assets or business activities may be bound or restricted (“Contracts”) (other than Leases set forth in Section 5.21(b) of the Company Disclosure Schedule sets Letter) of the following categories (collectively, and together with the Leases set forth in Section 5.21(b) of the Company Disclosure Letter, the “Material Contracts” and each a true“Material Contract”):
(i) Contracts requiring annual expenditures by or liabilities of any party thereto in excess of $1.0 million that have a remaining term in excess of 90 days or are not cancelable (without material penalty, cost or other liability) within 90 days;
(ii) Contracts containing covenants limiting in any material respect the ability of the Company or any of its Subsidiaries or other affiliate of the Company (including Purchaser and its affiliates after the Effective Time) to engage in any line of business or compete with any Person, in any product line or line of business, or operate at any location;
(iii) 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 $1.0 million, whether as borrower, lender or guarantor;
(iv) joint venture, alliance or partnership agreements or joint development or similar agreements with any Third Party under which the Company has or may in the future have an obligation to invest or pay in excess of $1.0 million pursuant to the terms of any such agreement;
(v) all licenses, sublicenses, consents, royalty and other agreements concerning Proprietary Rights or Related Rights which Proprietary Rights or Related Rights, as applicable, are material to the conduct of the business of the Company or any of its Subsidiaries;
(vi) employment or severance contracts with current or former officers or directors, including, without limitation, change-in-control agreements;
(vii) Contracts with or for the benefit of any director of the Company or any Person other than a publicly traded entity in which any director has an equity interest or which is an employer of a director of the Company;
(viii) Contracts with any Governmental Entity that have a remaining term in excess of one year or are not cancelable (without material cost, penalty or other liability) within 180 days;
(ix) Contracts or commitments in which the Company or any of its Subsidiaries has granted exclusive marketing rights relating to any product or service, any group of products or services or any territory;
(x) Contracts pending for the acquisition or sale, directly or indirectly (by merger or otherwise) of assets (whether tangible or intangible), in excess of $1.0 million in market or book value with respect to any contract or the capital stock of another Person, in each case in an amount in excess of $1.0 million; or
(xi) as of the date hereof, any other Contract the performance of which could be reasonably expected to require annual expenditures in any calendar year by the Company or any of its Subsidiaries in excess of $1.0 million.
(b) True and complete copies of the written Material Contracts and correct list descriptions of verbal Material Contracts, if any, have been delivered or made available to Purchaser. As of the date hereof, each of the following Material Contracts is a valid and binding obligation of the Company and, to the knowledge of the Company, 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 similar Laws affecting creditors’ rights generally and by general principles of equity. From and after the date hereof, except as would not reasonably be expected to result in a Material Adverse Restriction, each of the Material Contracts is a valid and binding obligation of the Company and, to the knowledge of the Company, 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 similar Laws affecting creditors’ rights generally and by general principles of equity.
(c) Neither the Company nor any of its Subsidiaries is, or has received any notice that any other party is, in breach, default or violation (each a “Default”) (and no event has occurred or not occurred through the Company’s inaction or, to the knowledge of the Company, through the action or inaction of any third parties, which with notice or the lapse of time or both would constitute a Default) of any term, condition or provision of any Material Contract to which the Company or any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any of dividends them or any other distribution in respect of the Membership Units their respective properties or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides assets may be bound, except for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount Defaults that would not reasonably be material expected to the Companyhave, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the a Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAdverse Effect.
(d) The Company has no Liability for not received notice of the deferred purchase price of property, goods or services, whether connected or not to the acquisition termination of any business (earn-out or other similar type of payments) or noncompetition agreementMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (FTD Inc), Merger Agreement (FTD Inc)
Material Contracts. (a) Section 4.10(a) Except for this Agreement, the Company Benefit Plans, the Collective Bargaining Agreements and agreements filed as exhibits to the Company SEC Documents as of the Company Disclosure Schedule sets forth a true, complete date of this Agreement and correct list of each of the following Contracts to which neither the Company nor any of its Subsidiaries is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts that contain restrictions with respect to payment any “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanySEC);
(ii) any Contract that by its terms requires (A) imposes any material restriction on the payment by right or on behalf ability of the Company in excess or any of $100,000 per annum its Subsidiaries to compete with any other person or acquire or dispose of the delivery by securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of goods or services with its Subsidiaries in a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annummaterial manner;
(iii) all Contracts involving a loan (any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other than accounts receivable owing from trade debtors in the Ordinary Course agreement or instrument evidencing indebtedness for borrowed money or any guarantee of Business) or advance to (other than travel and entertainment advances to the employees such indebtedness of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment its Subsidiaries in an amount in excess of $25,0005,000,000;
(iv) any Contract that (i) requires 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 Company to purchase any product or service and its Subsidiaries, in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service35,000,000;
(v) any Contract that relates to an acquisition material joint venture, partnership or divestiture of material assets that contains covenants, indemnities limited liability company agreement or other contractual obligations that could impose a Liability that is material 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;
(vi) any Contract under which expressly limiting or restricting the ability of the Company has or any outstanding Indebtedness of its Subsidiaries to make distributions or evidencing an Encumbrance on any property declare or asset pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the Company, other than a Permitted Encumbrancecase may be;
(vii) all Contracts any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person, other than (A) advances for expenses required under which customary joint operating agreements and customary advances to operators of Oil and Gas Interests not covered by a joint operating agreement less than $25,000,000 or (B) any Person loan or capital contribution to, or investment in, (1) the Company or one of its wholly owned Subsidiaries, (2) any person (other than the Company) has directly an officer, director or indirectly guaranteed Indebtedness employee of the Company in excess or any of its Subsidiaries) that is less than $50,000500,000 to such person or (3) any officer, director or employee of the Company or any of its Subsidiaries that is less than $500,000 to such person;
(viii) any bonds or Contracts of Guarantee in which Contract providing for the sale by the Company acts as or any of its Subsidiaries of Hydrocarbons that (A) excluding Contracts with market-based pricing mechanisms, has a surety remaining term of greater than 60 days and does not allow the Company or guarantor with respect such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “take or pay” clause or any similar material prepayment or forward sale arrangement or obligation (fixed excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or contingent) of another Personthereafter receiving full payment therefor;
(ix) all Contracts involving any joint ventureContract relating to a currently producing property that provides for a call or option on production, partnershipor acreage dedication to a gathering, strategic alliancetransportation or other arrangement downstream of the wellhead, shareholders’ agreementcovering in excess of 50 MMcf (or, co-marketingin the case of liquids, co-promotion, joint development or similar arrangementin excess of 750 barrels) of Hydrocarbons per day (calculated on a yearly average basis);
(x) all Contracts involving any resolution Oil and Gas Lease that contains express provisions (A) obligating the Company or settlement any of any actual or threatened Action under its Subsidiaries to drill ▇▇▇▇▇, pursuant to which the Company has or any obligation Subsidiary would reasonably be expected to be required to expend $1,000,000 on any individual Oil and Gas Lease or Liability $5,000,000 in the aggregate on all obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $1,500,000 that will continue after were not satisfied at the Closing Datetime of leasing or signing and that remain payable, (C) requiring payments or providing for a change in terms upon a change in control of the lessee or (D) providing for a fixed term, even if there is still production in paying quantities;
(xi) any Contract limiting or restraining agreement other than Oil and Gas Leases pursuant to which the Company or any successor thereto from engaging of its Subsidiaries has paid amounts associated with any Production Burden in excess of $10,000,000 during the immediately preceding fiscal year or competing with respect to which the Company reasonably expects that it will make payments associated with any Production Burden in any mannerof the next three succeeding fiscal years that could, in any location or in any businessbased on current projections, exceed $10,000,000 per year;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under agreement which the Company is a party providing for the license of joint development agreement, exploration agreement or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such acreage dedication agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate in respect of each of the Companyforegoing, for an amount in excess of $100,000, individually customary joint operating agreements) that either (in the case of a lease, per annumA) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and not otherwise disclosed pursuant its Subsidiaries to this Section 4.10(a)make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof;
(xiii) 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 $10,000,000; and
(xiv) any material lease or sublease with respect to a Company Leased Real Property.
(xv) All contracts of the types referred to in clauses (i) through (xv) above are referred to herein as “Company Material Contracts.”
(b) The Except as has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company is in material compliance with breach of or default under the terms and provisions of each any Company Material Contract. The CompanyContract and, and to the Knowledge knowledge of the Company, the no other party to any Company Material Contract is not in material breach of or default under any of its terms. The Company has not received notice the terms of any breach, default or notice of termination by any Person under any Company Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Each Company Material Contract is set forth in Section 4.10(a) a valid and binding obligation of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on or the Subsidiary of the Company that is party thereto in accordance with its respective terms and, to the knowledge of the Company, of each other party thereto, and (ii) is in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect subject to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractRemedies Exceptions.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (McMoran Exploration Co /De/), Merger Agreement (Freeport McMoran Copper & Gold Inc)
Material Contracts. (a) Section 4.10(aSchedule 5.13(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each all of the following Contracts to which the Company or any of the Subsidiaries is a party or by which the Company any of them is bound as of the date of this Agreement (collectively and which have not been entirely fulfilled or performed (such Contracts, collectivelytogether with any Contracts entered into prior to the Closing in accordance with Section 8.2(b)(xiv) hereof, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends any Seller or any current officer, director or other distribution in respect Affiliate of any Seller, the Company or any of the Membership Units Subsidiaries or other Equity any family member of the Companyany such Person;
(ii) Contracts with any Contract that by its terms requires the payment by labor union or on behalf association representing any employee of the Company in excess or any of $100,000 per annum the Subsidiaries and any written employment or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumseverance agreement;
(iii) all Contracts involving a loan for the sale of any material Assets of the Company or any of the Subsidiaries (other than accounts receivable owing from trade debtors in the Ordinary Course sale of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended finished goods inventory in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) Contracts relating to any Contract that (i) requires acquisition to be made by the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase Subsidiaries of any product operating business or servicethe capital stock of any other Person (or all or any material portion of the Assets of any business, business unit, facility or Person);
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material Contracts relating to the Companyincurrence of Indebtedness or the making of any loans to any other Person by the Company or any of its Subsidiaries;
(vi) any Contract under Contracts which the Company has reasonably anticipates will involve the expenditure by or to the Company or its Subsidiaries of more than $250,000 in the aggregate or require performance by any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of party more than one year from the Company, other than a Permitted Encumbrancedate hereof;
(vii) all Contracts under which any Person (other than the Company) has directly sale and leaseback agreement covering a material Asset or indirectly guaranteed Indebtedness any Contract governing any business arrangement of the Company in excess of $50,000this nature involving a material Asset;
(viii) any bonds or Contracts Contract containing covenants limiting the freedom of Guarantee in which the Company acts as a surety or guarantor any of its Subsidiaries to engage in any line of business or compete with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venturematerial distribution, partnershipfranchise, strategic alliancelicense, shareholderssales, commission, consulting agency or advertising Contract which (A) involves annual payments, in excess of $50,000 or (B) is not cancelable on thirty (30) calendar days’ agreement, co-marketing, co-promotion, joint development notice without payment or similar arrangementpenalty;
(x) all Contracts involving any resolution licensing agreement or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any other Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect relating to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract Rights that is material to the operation of the business of the Company and or any of its Subsidiaries as conducted as of the date of this Agreement;
(xi) any joint venture Contract, partnership agreement, limited liability company agreement or other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any other Person;
(xii) any Contract providing for capital expenditures after the date hereof in an amount in excess of $100,000 individually or in the aggregate;
(xiii) any material written warranty, guaranty or other similar undertaking with respect to contractual performance extended by the Company or any of its Subsidiaries other than in the Ordinary Course of Business;
(xiv) any Contract with “take or pay” provisions, or “requirements” provisions committing a Person to provide the quantity of goods or services required by another Person which the Company reasonably anticipates will involve aggregate payments by or to the Company or any of its Subsidiaries of more than $500,000;
(xv) any Contract with any foreign sales agents;
(xvi) any Contract with a customer of the Company or any of its Subsidiaries that provides for pay-on-scan payment terms; and
(xvii) any material agency agreement including without limitation material export agency agreements. In addition to the Contracts described in clauses (i) – (xvii) above, the defined term “Material Contract” shall also include all unfulfilled purchase orders (or any series of related purchase orders) involving the purchase or sale of products or services by the Company having an aggregate value equal to or greater than $500,000, which purchase orders shall not otherwise disclosed pursuant be required to this Section 4.10(abe described or listed in Schedule 5.13(a).
(b) The Except as set forth on Schedule 5.13(b), neither the Company nor any Subsidiary is in material compliance breach or violation of, or default under, any Material Contract, nor has the Company or any Subsidiary received any written notice of, nor does the Company have any Knowledge of, any default or event that with notice or lapse of time, or both, would constitute a default by the terms Company and provisions the Subsidiaries under any Material Contract, nor, to the Knowledge of each the Company or the Sellers, is any other party to any Material Contract in breach of or default thereunder (other than in the case of purchase orders issued to the Company for the failure by any third party to pay any amount due and owing thereunder). No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. The CompanyCompany has made available to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. Except as set forth in Schedule 5.13(b), each Material Contract is in full force and effect (and will remain in full force and effect upon consummation of the transactions contemplated by this Agreement) and (i) is a valid agreement of the Company or Subsidiary which is a party thereto, enforceable against such Company or Subsidiary in accordance with its terms and (ii) to the Knowledge of the Company, is a valid agreement of each other party thereto, enforceable against such party in accordance with its terms, except in each case where enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and except where enforceability is subject to the other application of equitable principles or remedies. Except as specifically noted in Schedule 5.13(b), no consent of any party to any Material Contract is not required in breach connection with the execution, delivery and performance of this Agreement by the Company and the Sellers or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) the consummation of the Company Disclosure Scheduletransactions contemplated by this Agreement.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (UCI Holdco, Inc.), Stock Purchase Agreement (United Components Inc)
Material Contracts. All agreements, contracts, leases, licenses, instruments, commitments (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a trueoral or written), complete indebtedness, liabilities and correct list of each of the following Contracts other obligations to which the a Group Company is a party or by which the Company it is bound that (a) are material to the conduct and which have not been entirely fulfilled operations of its business and properties, or performed (b) obligate such ContractsGroup Company to share, collectively, license or develop any product or technology outside the ordinary course of business are hereinafter referred to as “Material Contracts”):
. For purposes of clause (a) of this Section, “material” means any agreement, contract, indebtedness, liability, arrangement or other obligation (i) all Contracts that contain restrictions with respect to payment having an aggregate value, cost, liability or amount in excess of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
RMB5,000,000, (ii) any Contract that by its terms requires with the payment by or on behalf term thereof extending for more than one (1) year beyond the date of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
this Agreement, (iii) all Contracts containing exclusivity, non-competition, or similar clauses that impair, restrict or impose conditions on any of the Group Companies’ right to offer or sell products or services in specified areas, during specified periods, or otherwise, (iv) not in the ordinary course of business, (v) transferring or licensing any Intellectual Property to or from any of the Group Companies (other than licenses granted under the medical devices sales agreements executed by the Group Company in the ordinary course of business), (vi) involving any provision providing for exclusivity, “change in control”, “most favored nations”, rights of first refusal or first negotiation or similar rights, or granting a power of attorney, agency or similar authority, (vii) involving the ownership or lease of, title to, use of, or any leasehold or other interest in, any real or personal property with an annual rental exceeding US$200,000 (except for movable property leases in the ordinary course of business and involving payments of less than US$100,000), (viii) involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)to, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the not a Group Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving providing for the incurrence of indebtedness of any joint ventureGroup Company with a financial institute, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement provision providing for the guarantee of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
indebtedness, (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannerbeing between, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretoany Group Company and, on the other hand, (x) the Founder or his/her Affiliates or (y) any Related Party of any Group Company, or (xii) being with a Governmental Authority, or sole-source supplier of any material product or service. Each Material Contract is a valid and binding agreement of the parties thereto, the performance of which does not and will not violate any applicable Laws in any material respects, and is in full force and effect against the parties thereto. Each Group Company has duly performed all of its obligations under each Contract in material respects to the extent that such obligations to perform have accrued, and no breach or default, to the Knowledge of any of the Warrantors, alleged breach or alleged default, or event which would constitute a breach or default thereunder by such Group Company or any other party or obligor with respect thereto, has occurred. No Group Company has given notice that it intends to terminate a Material Contract or, to the subject matter thereof. No event Knowledge of any of the Warrantors, that any other party thereto has breached, violated or circumstance defaulted under any Material Contract, and no Group Company has occurred thatreceived any notice that it has breached, with notice violated or lapse of time or both, would constitute an event of default defaulted under any Material Contract or result in a termination thereof or would cause or permit or, to the acceleration or other changes Knowledge of any right or obligation or of the loss of Warrantors, that any benefit thereunder. The Company has no reason to believe any other party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent thereto intends to terminate by any party to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Global Mofy Metaverse LTD), Share Purchase Agreement (Global Mofy Metaverse LTD)
Material Contracts. (a) Section 4.10(a) 4.11 of the Company Disclosure Schedule sets forth a true, complete and correct list of Letter lists each of the following Contracts contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries is a party affecting the obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or by which the Company is any of their respective properties or assets are bound and which have not been entirely fulfilled or performed (such other than Government Contracts, collectively, the “Material Contracts”which are addressed in Section 4.10):
(i) all Contracts that contain restrictions with respect any contract or agreement, whether written or otherwise, for the purchase or sale of any material personal property or for the furnishing of services to payment of dividends or by the Company or any other distribution in respect of its Subsidiaries that involves future aggregate annual payments to or by the Membership Units Company or other Equity any of its Subsidiaries of $1,000,000 or more (excluding those contracts and agreements terminable by the CompanyCompany or such Subsidiary upon 180 days’ notice or less without liability to the Company exceeding $500,000);
(ii) any Contract that by its terms requires contract, agreement or instrument relating to or evidencing capitalized lease obligations or other indebtedness of, for the payment by benefit of, or on behalf of payable to, the Company in excess or any of $100,000 per annum its Subsidiaries (or the delivery any guaranty of capital lease obligations or other indebtedness of or by the Company or any of goods or services with a fair market value its Subsidiaries) in excess the amount of $100,000 per annum 500,000 or provides for the Company to receive payments in excess of $100,000 per annummore;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) any contract or advance agreement pursuant to (other than travel and entertainment advances which any third party is authorized to use any material intellectual property rights owned by or exclusively licensed to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000its Subsidiaries;
(iv) any Contract that (i) requires contract or agreement pursuant to which the Company or any of its Subsidiaries is authorized to purchase use any product or service in excess of $100,000 from a third party or (ii) requires that the material Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceIntellectual Property Rights;
(v) any Contract that relates agreement concerning an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to an acquisition which the Company or divestiture any of material assets that contains covenants, indemnities or other contractual obligations that could impose its Subsidiaries is a Liability that is material to the Companyparty;
(vi) any Contract under agreement (other than agreements containing immaterial or de minimis restrictions) that contains any non-compete or exclusivity provisions with respect to any line of business in which the Company has or any outstanding Indebtedness of its Subsidiaries is currently engaged or evidencing an Encumbrance on geographic area with respect to the Company or any property of its Subsidiaries, or asset that purports to restrict in any material respect the right of the Company, other than a Permitted EncumbranceCompany or any of its Subsidiaries to conduct any line of business in which the Company or any of its Subsidiaries is currently engaged or to compete with any Person or operate in any geographic area or location;
(vii) all Contracts under which any Person (material partnership, limited liability company agreement, joint venture or other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000similar agreement entered into with any third party;
(viii) any bonds contract or Contracts of Guarantee in which the Company acts as a surety or guarantor agreement with respect to any obligation (fixed acquisition or contingent) disposition of another Personany person or business or material portion thereof pursuant to which the Company or any of its Subsidiaries has any continuing indemnification, “earn-out” or other contingent payment obligation;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development contract or similar arrangementagreement pursuant to which the Company or any of its Subsidiaries agrees to indemnify or hold harmless any director or executive officer of the Company or any of its Subsidiaries (other than the organizational documents of the Company or the Company’s Subsidiaries);
(x) all Contracts involving any resolution contract or settlement agreement that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer, the Merger or any of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;other transactions contemplated by this Agreement; or
(xi) any Contract limiting or restraining the Company or commitments and agreements to enter into any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete foregoing. Each such contract described in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all clauses (i) employment agreements through (excludingxi) above, for certaintytogether with each contract described in paragraph (b) below, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) is referred to which the Company is herein as a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)“Contract.”
(b) The Company is in All the material compliance with the terms and provisions of each Material Contract. The Company, and contracts that are required to be filed as exhibits to the Knowledge of the Company, the other party to any Material Contract is not in breach Company SEC Reports have been described or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedulefiled as required.
(c) Each Material Contract of the Contracts is (i) a valid and binding on obligation of the Company (or the Subsidiaries of the Company party thereto), and to the Company’s knowledge, the other parties thereto, enforceable against the Company and its Subsidiaries and, to the Company’s knowledge, the other parties thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, except as applicable)enforceability may be limited by bankruptcy laws, between other similar laws affecting creditors’ rights and general principles of equity affecting the Company, on one hand, availability of specific performance and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractequitable remedies.
(d) The Neither the Company nor any of its Subsidiaries is, nor to the Company’s knowledge is any other party, in breach, default or violation (and no event has no Liability for the deferred purchase price of property, goods or services, whether connected occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the acquisition Company’s knowledge, through the action or inaction of any business (earn-out third party that with notice or other similar type the lapse of paymentstime or both would constitute a breach, default or violation) of any term, condition or noncompetition agreementprovision of any Contract, except for breaches, defaults or violations that have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (United Industrial Corp /De/), Merger Agreement (Textron Inc)
Material Contracts. (a) Section 4.10(aSchedule 3.12(a) of the Company Seller Disclosure Schedule Letter sets forth forth, as of the date hereof, a true, complete and correct list of each all of the following Contracts that relate primarily to the Business or are necessary for the operation of the Business, in each case, to which the Company a Seller or a Conveyed Entity is a party party, or by which that has been entered into on behalf of the Company Business (collectively, together with each such Contract that is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyentered into after the date of this Agreement, the “Material Contracts”):; and each a “Material Contract”), materially correct and complete copies of which (other than purchase orders for Business Products entered into in the ordinary course of the Business) have been made available to Purchaser:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units each equipment lease or other Equity lease of personal property which entails annual rental payments in excess of $250,000 per annum or $500,000 in the Companyaggregate;
(ii) each Contract for goods and/or services (including any intercompany Contracts) by and between any of the Sellers and/or the Conveyed Entities and/or any of their Affiliates (other than the Business) and/or any of the officers, directors or employees of either Seller or the Conveyed Entities and/or any of their Affiliates (other than the Business), on the one hand, and the Business, on the other hand;
(iii) each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee (excluding items set forth in Schedule 3.15(b) of the Seller Disclosure Letter) in respect of Indebtedness of the Conveyed Entities or the Business in excess of $250,000;
(iv) each customer, distribution, reseller or sales representative Contract expected to result in payment to the applicable Conveyed Entity or any other Person on behalf of the Business in excess of $1,000,000 per annum or that have resulted in such payments in excess of $2,000,000 in the aggregate over the last three years;
(v) each Contract with a Governmental Authority expected to result in payment to a Conveyed Entity in excess of $100,000;
(vi) each Contract with vendors (including OEMs) of the Business expected to result in payment by the applicable Conveyed Entity in excess of $1,000,000 per annum or that have resulted in such payments in excess of $2,000,000 in the aggregate over the last three years;
(vii) each Contract relating to capital expenditures and involving similar future payments in excess of $250,000 individually or $500,000 in the aggregate;
(viii) each Contract relating to the disposition of material assets of the Business or the acquisition or disposition of any assets or any interest in any Person or business enterprise;
(ix) each Contract limiting the ability of any Conveyed Entity or the Business to compete with any Person;
(x) each material joint venture Contract;
(xi) each Intellectual Property License;
(xii) each employment Contract, consulting Contract and severance agreement with any director, officer or employee of either Seller or its terms requires Affiliates, Tyco or its Affiliates or the payment Conveyed Entities, in each case, engaged primarily in the Business, which is likely to involve payments by or on behalf of the Company Seller or its Affiliates, Tyco or its Affiliates or the Conveyed Entities in excess of $100,000 150,000 per annum year, including Contracts (A) to employ or terminate executive officers or other key personnel (including key engineering staff), (B) with such present or former officers or directors pursuant to which the Conveyed Entities or the delivery by the Company of goods Business has current Liabilities or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iiiC) all Contracts involving a loan (other than accounts receivable owing from trade debtors that will result in the Ordinary Course payment by, or the creation of Business) or advance any Liability to (other than travel and entertainment advances to the employees pay on behalf of the Company extended in Conveyed Entities, the Ordinary Course Business or the Purchaser any severance, termination, “golden parachute,” or other similar payments to any such present or former employees following termination of Business)employment or otherwise as a result of the consummation of the transactions contemplated by Transaction Documents, or investment in, any Person or any agreement provided that the information relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset foregoing shall be as of the Company, other than a Permitted Encumbrance;
(viidate specified in Schedule 3.12(a) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate ContractsSeller Disclosure Letter;
(xiii) any Company IP Agreements as well as each collective bargaining Contract or similar Contract, including any Contract under which the Company is a party providing for the license of with any union, works council or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseesimilar labor entity;
(xiv) each Contract of indemnification or hold harmless agreement (including with respect to any Contract concerning director, officer or employee of either Seller or its Affiliates, Tyco or its Affiliate or the acquisitionConveyed Entities, dispositionin each case, occupancy, management or operation of any Real Property owned, leased or used by engaged primarily in the CompanyBusiness);
(xv) all collective bargaining agreements entered into each power of attorney granted by any Conveyed Entity that is effective and outstanding as of the Company;date hereof; and
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, each other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respectContract, the ability loss of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is would have a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Company Except as set forth on Schedule 3.12(a) of the Seller Disclosure Letter, all notices, approvals and consents that were agreed by the parties to the Tyco Agreement to be given or obtained pursuant to that agreement have been properly given or obtained as required by each Material Contract in order to validly assign, transfer or convey each such Contract to Sellers or the Conveyed Entities. Except as set forth on Schedule 3.12(a) of the Seller Disclosure Letter, each Material Contract is in material compliance with the terms full force and provisions effect and is a valid and binding agreement of each Material Contract. The Companyof the Conveyed Entities (or, and as applicable, the Affiliate of the Conveyed Entities party thereto) and, to the Knowledge of the CompanySellers, the any other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any such Contract; and there exists no breach, violation, default or notice event of termination default (with or without notice, lapse of time or both) by the applicable Seller or a Conveyed Entity or, to the Knowledge of Sellers, any Person under other party to any such Contract, with respect to any term or provision of any such Contract, in each case, which would have a Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleAdverse Effect.
(c) Each Material Contract is (i) valid and binding on There are no warranty claims or other uninsured claims pending or, to the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description Knowledge of Sellers, threatened against any of the material termsSellers, as applicable), between the Company, on one hand, and Conveyed Entities or the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default Business under any Material Contract or result Contracts which might involve a material monetary Liability which is not reserved against in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractBalance Sheet.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.), Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Material Contracts. (a) Section 4.10(a) Except for this Agreement and the Contracts filed as exhibits to the Company Reports, as of the date hereof, none of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company or its Subsidiaries is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts any Contract that contain restrictions with respect is required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires involving the payment by or on behalf receipt of the Company in excess of $100,000 per annum or the delivery amounts by the Company or any of goods its Subsidiaries, or services with a fair market value relating to indebtedness for borrowed money or any financial guarantee, of more than US$3,500,000 in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumany calendar year on its face;
(iii) all Contracts involving any Contract that contains a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) put, call or advance similar right pursuant to (other than travel and entertainment advances to the employees of which the Company extended in the Ordinary Course or any of Business)its Subsidiaries could be required to purchase or sell, or investment inas applicable, any equity interests of any Person or any agreement relating to the making assets that have a fair market value or purchase price of any such loan, advance or investment in excess of $25,000more than US$100,000;
(iv) any Contract that (i) requires relating to the Company to purchase any product formation, creation, operation, management or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase control of any product or servicejoint venture;
(v) any Contract that relates between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to an acquisition be disclosed pursuant to Item 7B or divestiture Item 19 of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to Form 20-F under the Company;Exchange Act; and
(vi) any non-competition Contract under which or other Contract that limits or purports to limit in any material respect the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset type of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee business in which the Company acts as a surety or guarantor with respect to any obligation (fixed its Subsidiaries may engage, the type of goods or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under services which the Company has or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing of them may so engage in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or use their assets. Each such Contract described in any geographic area or during any period of time;
(xix) all clauses (i) employment agreements through (excluding, for certainty, any employees who are employed at willvi) and (ii) Contracts with independent contractors or consultants (or similar arrangements) above is referred to which the Company is herein as a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)“Material Contract”.
(b) The Except as would not have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Material Contracts is valid and binding on the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and is in material compliance with full force and effect, subject to the terms Bankruptcy and provisions Equity Exception and (ii) there is no breach or default under any Material Contract by the Company or any of each Material Contract. The Company, its Subsidiaries and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event of a breach or default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and by the Company has not received or any notice of termination or intent to terminate by any party to any Material Contractits Subsidiaries.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which Original Execution Date, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of the Original Merger Agreement, dispositionthis Agreement or the consummation of the Transactions, occupancyincluding the Merger, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to ▇▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to ▇▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or 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 limit, involves payments of more than US$5,000,000 in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the Original Execution Date); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) none of the execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
Material Contracts. (a) Section 4.10(a) of the Company The Disclosure Schedule Letter sets forth a true, complete and correct list of each all (i) Contracts for borrowed money or guarantees thereof, (ii) Contracts to acquire or dispose of any businesses or any material assets, (iii) Contracts involving any swap or option transaction relating to commodities, interest rates, foreign exchange, or currency or other similar transactions customarily known as a derivative ("Derivatives"); (iv) Contracts containing an agreement by the following Company or any Subsidiary restricting its ability to engage in any line of business or other activity; (v) Contracts entered into by the Company, any of its Subsidiaries or their respective predecessors since December 1, 1991 involving the purchase, sale or other acquisition or disposition by such parties of one or more business units, divisions or entities (including former Subsidiaries) with respect to which the Company's or any of its Subsidiary's surviving liability (including indemnities), or other obligations (including deferred payment and earn-out obligations), could reasonably be expected to exceed $1,000,000, or which require funds to be held in trust or escrow for the benefit of a third party; (vi) Contracts involving the investment, including by way of capital contribution, loan or advance, by the Company or any of its Subsidiaries of more than $3,000,000 in any other person, firm or entity; (vii) Contracts to purchase powder metals or atmospheres that are material to the Company and its Subsidiaries and (viii) other Contracts which involve the payment or receipt of $5,000,000 or more per year. All Contracts to which the Company or any of its Subsidiaries is a party or by which the Company any of their respective assets is bound are valid and which have not been entirely fulfilled or performed (such Contractsbinding, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel full force and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining effect and enforceable against the Company or any successor thereto from engaging or competing in any mannerof its Subsidiaries, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property includingcase may be, without limitationand, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party parties thereto in accordance with its their respective terms terms, subject to applicable bankruptcy, insolvency or other similar laws relating to creditors' rights and (ii) general principles of equity, except where the failure to be so valid and binding, in full force and effecteffect or enforceable would not individually or in the aggregate have a Material Adverse Effect. Each Material Contract (There is not under any such Contract, any existing default, or description) sets forth the entire agreement and understanding (or complete description of the material termsevent, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with which after notice or lapse of time time, or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsdefault, and by the Company has not received or any notice of termination its Subsidiaries, or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of Company's knowledge, any business (earn-out other party, other than any such defaults or other similar type of payments) event which, individually or noncompetition agreementin the aggregate, would not have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
Material Contracts. (a) Except as set forth on Section 4.10(a) 3.16 of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each of the following Contracts to which neither the Company nor any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
to any: (i) all Contracts that contain restrictions collective bargaining agreement or contract with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock purchase, stock option, stock appreciation or similar plan; (iv) contract for the employment of any Contract that officer, individual employee or other person on a full-time or consulting basis involving an annual compensation commitment by its terms requires the payment by or on behalf of the Company or a Subsidiary in excess of $100,000 per annum 200,000; (v) agreement or indenture relating to the delivery by the Company borrowing of goods or services with a fair market value money in excess of $100,000 per annum 1,000,000 or provides to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien (as defined herein)) on any material portion of the Company's assets; (vi) guaranty of any obligation for the Company to receive payments borrowed money in excess of $100,000 per annum;
1,000,000; (iiivii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) lease or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)agreement under which it is lessee of, or investment inholds or operates any personal property owned by any other party, any Person for which the annual rental exceeds $250,000, (viii) contract or any agreement relating to group of related contracts with the making same party for the purchase of any inventories, supplies or services, under which the undelivered balance of such loaninventories, advance supplies or investment services has a selling price in excess of $25,000;
1,000,000; (ivix) any Contract that (i) requires contract or group of related contracts with the Company to purchase any product same party for the sale of products or service services under which the undelivered balance of such products or services has a sales price in excess of $100,000 1,000,000; (x) agreement pertaining to Intellectual Property (as hereinafter defined) including, license agreements or similar arrangements; or (xi) contract which prohibits or materially limits the Company or a Subsidiary in any material respect from a third party freely engaging in business in the United States or anywhere else in the world (all such contracts and agreements, "Material Contracts"). The Company has provided or made available to ICS (i) true and complete copies of all written Material Contracts, or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) such Material Contracts that have not been reduced to writing, a written description thereof, each of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement which is listed on Section 3.16 of any actual or threatened Action under which the Disclosure Schedule. Neither the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under nor any of its terms. The Company Subsidiaries is, or has not received any notice of or has any breachknowledge that any other party is, in default or notice of termination by in any Person respect under any such Material Contract. A true, complete and correct copy of each written except for those defaults which would not reasonably be likely, either individually or in the aggregate, to have a Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, Adverse Effect with respect to the subject matter thereof. No Company; and there has not occurred any event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event such a material default. For purposes of default under any Material Contract this Agreement, "Permitted Liens" shall mean (i) Liens for Taxes (other than those pursuant to Section 412 of the Code) or result governmental assessments, charges or claims, the payment of which is not yet due, or for Taxes, the validity of which are being contested in a termination thereof good faith by appropriate proceedings; (ii) statutory Liens incurred in the ordinary course of business for sums not yet due or would cause being contested in good faith; (iii) Liens relating to deposits made in the ordinary course of business; and (iv) Liens which do not individually or permit in the acceleration aggregate materially interfere with or other changes materially impair the conduct of any right or obligation the Business as it is currently being conducted, or the loss value, marketability, use or ownership of any benefit thereunder. The Company has no reason the asset to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractwhich it attaches.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Microclock Inc)
Material Contracts. (a) Except as set forth in Section 4.10(a) 3.13 of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following date hereof, there are no Contracts to which included in the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
Purchased Assets (i) all Contracts containing covenants that contain restrictions with respect limit or purport to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, limit the ability of the Company a Seller or Transferred Entity to compete in any line of business or with any Person Person, industry or in any geographic geographical area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and that relates to the Business; (ii) Contracts with independent contractors which expressly creates a partnership or consultants (joint venture or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract arrangement that is material relates to the operation of the business Business; (iii) for the sale or exclusive license of any material assets of the Company Business other than Inventory or Products or for the furnishing of services by a Seller or Transferred Entity other than in the ordinary course of business consistent with past practice; (iv) which is a collective bargaining agreement, employee association agreement or other agreement with any labor union, employee representative group, works council or similar collection of employees; (v) between or among a Seller or Transferred Entity, on the one hand, and not otherwise disclosed pursuant one or more Affiliates of a Seller (other than another Seller or Transferred Entity), on the other hand; (vi) under which the Business has made payments in excess of $2,000,000 in the last fiscal year or anticipate making payments in excess of $2,000,000 in the current fiscal year (other than purchase orders or invoices entered into in the ordinary course of business and ordinary course trade payables and trade receivables negotiated on an arms’ length basis); (vii) involves the sale, development, use or license of any Intellectual Property that is primarily used in the conduct of and material to the Business other than non-exclusive licenses entered into in the ordinary course of business; (viii) under which the Business received payments in excess of $2,000,000 in the last fiscal year or anticipates receiving payments in excess of $2,000,000 in the current fiscal year (other than sales orders or invoices entered into in the ordinary course of business); or (ix) containing any “take-or-pay” or “requirements” provision requiring any Seller (relating to the Business) or any Transferred Entity to make a minimum payment for or purchase a minimum quantity of goods and services from third party suppliers irrespective of usage, except for Contracts under this Section 4.10(a)clause (ix) which require payments by or to the Business of less than $1,000,000 per annum. Each such contract described in clauses (i)-(ix) is referred to herein as a “Material Contract.”
(b) The Company As of the date hereof (i) Each Seller and Transferred Entity is not in material compliance with the terms and provisions breach of each or default under any Material Contract. The CompanyContract to which such Seller or Transferred Entity is a party and, and to the Knowledge of the CompanyHoneywell, the no other party to any Material Contract is not in breach thereof or default thereunder, (ii) o the Knowledge of Honeywell, neither any Seller nor any Transferred Entity has received any written notice or claim of material default under any Material Contract or, as of the date of this Agreement, any written notice of an intention to terminate or challenge the validity or enforceability of any Material Contract and to the Knowledge of Honeywell, no such action is threatened, and (iii) to the Knowledge of Honeywell, 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 by Honeywell. Sellers have Made Available to Purchaser true and complete copies of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any each Material Contract, including all material amendments, modifications, supplements, exhibits, schedules, addenda and restatements thereto and thereof. A true, complete and correct copy Sellers have not posted any surety bond or letter of each written Material Contract has been provided credit with respect to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleBusiness.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth applicable Seller and/or Transferred Entity and, to the entire agreement and understanding (or complete description Knowledge of the material terms, as applicable), between the Company, on one hand, and the other parties theretoSellers, on the other hand, with respect parties thereto subject to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractEnforceability Exceptions.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Honeywell International Inc), Stock and Asset Purchase Agreement (Be Aerospace Inc)
Material Contracts. Other than (ai) Section 4.10(aReal Property Leases, (ii) Company Plans, (iii) Contracts listed on Schedule 4.16(a) and 4.16(b) and (iv) Intellectual Property Licenses, Schedule 4.11(a) lists, as of the Company Disclosure Schedule sets forth a truedate hereof, complete and correct list of each all of the following Contracts executory contracts to which the Company is a party or by which its assets are bound (the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “"Material Contracts”"):
(i1) all individual Contracts that contain restrictions with customers with respect to payment which the Company billed more than $100,000 during 1999;
(2) any individual Contract which is an exclusive dealing, requirements or take or pay agreement involving expenditures in excess of dividends $50,000 during 1998;
(3) Contracts not listed or required to be listed pursuant to Section 4.11(a)(2) which provide for aggregate future annual payments by the Company of more than $100,000, except for purchase orders or sales orders arising in the ordinary and usual course of business, in which case they are listed only if any party thereto is obligated to make payments pursuant thereto aggregating more than $200,000;
(4) Contracts which establish a partnership, joint venture, material agency or other distribution similar arrangement;
(5) any Contract which relates to indebtedness for borrowed money in respect excess of $50,000 or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset);
(6) any Contract which provides for future payments that are conditioned on or result from, in whole or in part, a change of control of the Membership Units Company or other Equity a change of management of the Company;
(ii7) any Contract that by its terms requires the payment by which relates to marketing, sales or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or advertising and provides for the Company to receive aggregate future payments in excess of more than $100,000 per annum100,000;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) 8) any Contract under which the Company has guaranteed the obligations of any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the CompanyPerson, other than a Permitted Encumbrance;
(vii) all Contracts under which agreed to indemnify any Person (other than in the Company) has directly ordinary course of business), or indirectly guaranteed Indebtedness of the Company in excess of $50,000agreed to share Tax liability with any Person;
(viii9) any bonds or Contracts of Guarantee in Contract which relates to the acquisition by the Company acts as a surety of any of the capital stock or guarantor with respect to any obligation (fixed or contingent) substantially all of the assets of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi10) any Contract limiting or restraining which restricts the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability right of the Company to compete in any line of business or way with any other Person, or which contains covenants pursuant to which any non-natural Person has agreed not to compete, or otherwise restricts a non-natural Person's ability to engage freely, in any geographic area or during any period part of timethe Company Business;
(xix11) all (i) employment agreements (excluding, any Contract not disclosed herein or not otherwise required to be disclosed pursuant to this Schedule 4.11 which provides for certainty, any employees who are employed at will) annual payments in excess of $100,000 which extends more than a year from the date hereof and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which is not cancelable by the Company is a party and on 30 days' written notice without penalty;
(12) any Contract which are not cancellable without material penalty provides for the sale or without more lease after the date hereof of any of the assets of the Company other than ninety (90) days’ noticein the ordinary course of business; and
(xx13) any Contract which binds the Company to purchase, lease make payments to any director or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate former director of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Insilco Holding Co), Purchase Agreement (Insilco Corp/De/)
Material Contracts. (ai) Section 4.10(a) Except for this Agreement and except for Contracts filed as exhibits to the Company Reports, as of the date hereof, none of the Company Disclosure Schedule sets forth or its Subsidiaries is a true, complete and correct list of each party to or bound by:
(A) any Contract that would be required to be filed by the Company pursuant to Item 4 of the following Contracts Instructions to Exhibits of Form 20-F under the Exchange Act;
(B) any Contract involving the payment or receipt of amounts by the Company or any of its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than RMB 50,000,000 in any calendar year on its face;
(C) any Contract that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a party fair market value or by purchase price of more than RMB 30,000,000;
(D) any Contract relating to the formation, creation, operation, management or control of any joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act; and
(F) any non-competition Contract or other Contract that limits or purports to limit in any material respect the type of business in which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyits Subsidiaries may engage, the type of goods or services which the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any of them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company Reports is referred to herein as a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;.
(ii) any Contract that by its terms requires Except as is not, individually or in the payment by or on behalf aggregate, a Material Adverse Effect, (A) each of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Material Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel is valid and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance binding on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannerits Subsidiaries, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a leasemay be, per annum) or $150,000 in the aggregate (in the case of a leaseand, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the each other party thereto, and is in full force and effect subject to any Material Contract the Bankruptcy and Equity Exception; and (B) there is not in no breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination Material Contracts by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid or its Subsidiaries and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event of a breach or default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and by the Company has not received any notice of termination or intent to terminate by any party to any Material Contractits Subsidiaries.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which Original Execution Date, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of the Original Merger Agreement, dispositionthis Agreement or the consummation of the Transactions, occupancyincluding the Merger, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or 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 limit, involves payments of more than US$5,000,000 in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the Original Execution Date); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) none of the execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) Except (i) as set forth on Schedule 2.19(a), (ii) for licenses of, and other agreements with respect to, the items referred to in Section 4.10(a2.17 and (iii) of the Company Disclosure Schedule sets forth a truefor Leases, complete and correct list of each of the following Contracts as to which no representations or warranties are made other than as set forth in Section 2.9, the Company is not a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contractsby, collectivelynor are any of its assets affected by, the “Material Contracts”):any:
(i) all Contracts that contain restrictions with respect to payment note, debenture, bond, equipment trust, letter of dividends or any other distribution in respect of the Membership Units credit, indenture loan or other Equity agreement relating to Indebtedness, lending or investing of money or to the Companymortgaging or pledging of any of its assets;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumGovernmental Authority;
(iii) all Contracts involving a loan (guaranty of Indebtedness, other than accounts receivable owing from trade debtors endorsements made for collection in the Ordinary Course ordinary course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000business;
(iv) indemnification or other reimbursement obligations in excess of $100,000;
(v) Contract for the purchase of materials, supplies, goods or services that involves or would reasonably be expected to involve (A) annual payments by the Company of $100,000 or more or (B) aggregate payments by the Company, of $250,000 or more;
(vi) Contracts which prohibit it from freely engaging in any activity in any geographic region;
(vii) Contract (A) for the sale by the Company of materials, supplies, goods, services, equipment or other assets, and that involves a specified annual minimum dollar sales amount by the Company of $100,000 or more, or (B) pursuant to which the Company received payments of more than $100,000 in the year ended December 31, 2008 or expects to receive payments of more than $100,000 in the years ending December 31, 2009 and December 31, 2010;
(viii) Contract that (i) requires the Company to purchase its total requirements of any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale contains "take or purchase of any product or servicepay" provisions;
(vix) employment, consulting, termination or severance Contract, other than any such Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material terminable at-will by the Company without liability to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution partnership or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datejoint venture Contract;
(xi) any Contract limiting distribution, dealer, representative or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any businesssales agency Contract;
(xii) all Affiliate ContractsContract for the lease of personal property that provides for payments to or by the Company in any one case of $100,000 or more annually or $500,000 or more over the term of the lease;
(xiii) Contract for any Company IP Agreements as well as capital expenditure or leasehold improvement in any Contract under which one case in excess of $100,000 or in the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other aggregate greater than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee$250,000;
(xiv) any Contract concerning that relates to the acquisition, disposition, occupancy, management acquisition or operation disposition of any Real Property ownedmaterial business (whether by merger, leased sale of stock, sale of assets or used by the Companyotherwise);
(xv) all collective bargaining agreements entered into by the Company;Collective Bargaining Agreement or other Contract with any labor organization, union or association; or
(xvi) any Contract providing that other Contracts not described above which involve the payment to or by the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, $100,000 or more in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)twelve consecutive month period.
(b) The Company Except as set forth on Schedule 2.19(b), (i) each contract or commitment listed on Schedule 2.19(a) (the "Material Contracts") is in material compliance with the terms valid, binding and provisions of each Material Contract. The Company, and to the Knowledge of enforceable against the Company, ; (ii) the other party to any Material Contract Company is not in breach or material default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written has performed all material obligations under the Material Contract has been provided Contracts required to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handbe performed by it, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event not received any claim of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes Contract; and (iii) Seller has no knowledge of any right breach or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate anticipated breach by any other party to any Material Contract.
(dc) The Company Seller has no Liability for the deferred purchase price made available to Buyer true and complete copies of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementeach Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Datameg Corp), Stock Purchase Agreement (Datameg Corp)
Material Contracts. (ai) Section 4.10(a) Except as set forth in Schedule 8(d), as of the Company Disclosure Schedule sets forth a truedate hereof Seller, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment the Business, is not party to or otherwise bound by or subject to:
1) any written employment, severance or sales representative contract which contains an obligation (excluding commissions) to pay more than $100,000 per year;
2) any written consulting contract;
3) any real property lease or equipment lease which constitutes part of dividends the Business or the Assets;
4) any other distribution in Contract containing any covenant limiting the freedom of Seller, with respect of the Membership Units Business or other Equity the operations of the CompanyBusiness, to engage in any line of business or compete with any Person in any geographic area in any material respect;
(ii5) any Contract that by its terms requires in effect on the payment by date of this Agreement relating to the disposition or on behalf acquisition of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)assets of, or investment any interest in, any Person or any agreement relating business enterprise which relates to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, Business other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii6) any Contracts offset agreement entered into in connection with an international sales transaction and relating to any Governmental Authority contract that imposes on the Business an obligation to perform that will continue in effect on or after the Closing Date;
7) any Contract of any kind that (i) requires a payment by any party in excess of, or a series of payments which in the aggregate exceed, $100,000, (ii) has a term, or requires the performance of any obligations by any party over a period, in excess of one year, or (iii) involves any director, officer or stockholder of the Seller;
8) any Contract pursuant to which the Company Seller on behalf of the Business has made or will make loans or advances, or has or will have incurred debts or become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another Person, in each case, in an amount over $100,000 (except for the negotiation or collection of negotiable instruments in transactions in the Ordinary Course of Business);
9) any indenture, loan agreement, note, mortgage, security agreement, lease of real property or personal property or other Contract relating to the borrowing of funds, an extension of credit or financing for which the Business is obligated; or
10) any Contract involving a partnership, joint venture or other cooperative undertaking.
ii) Except as disclosed in Schedule 8(d), each contract disclosed in Schedule 8(d) is a party;
legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms (xviiiexcept as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers), and except with respect to liquidated damages owed by Seller and any delays or circumstances in connection therewith, Seller is not in default and has not failed to perform any obligation thereunder, and, to the Knowledge of Seller, there does not exist any event, condition or omission which would constitute a material breach or material default (whether by lapse of time or notice or both) by any Contracts that limitother Person, which would give rise to any right of termination. Except as disclosed in any material respectSchedule 8(d), the ability as of the Company date of this Agreement Seller has not received any written notification from any other Person party to compete any of the Contracts disclosed in any line Schedule 8(d) of business or with any Person or in any geographic area or during any period a claim of time;
(xix) all default by Seller. Seller has previously made available to Buyer (i) employment agreements true, accurate and complete copies of each document set forth on Schedule 8(d) (excludingcollectively, for certainty, any employees who are employed at willthe “Identified Contracts”) and (ii) a written description of each oral arrangement so listed on Schedule 8(d). Except as set forth on Schedule 8(d), all such Identified Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts arrangements have been entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (Seller in the case Ordinary Course of a lease, per annum) or $150,000 Business. Except for sales of assets in the aggregate (in the case Ordinary Course of a leaseBusiness and this Agreement, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under neither Seller nor any of its terms. The Company Affiliates has not received notice of any breach, default Contract or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, arrangement with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration sale or other changes disposition of the Business or any right or obligation or of the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAssets.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mastec Inc), Asset Purchase Agreement (Mastec Inc)
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct accurate list of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which that fall within the Company is bound following categories and which have not been entirely fulfilled or performed existing as of the date hereof (such Contracts, collectively, the “Company Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any Contract for the purchase or sale of dividends or any other distribution in respect of the Membership Units services, equipment or other Equity assets (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by the Company and/or its Subsidiaries of $300,000 or more; or (2) gives rise to anticipated receipts of more than $300,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the CompanyCompany and/or its Subsidiaries of any material penalty;
(ii) any Contract that by its terms requires the payment by material partnership, joint venture or on behalf of the Company in excess of $100,000 per annum other similar agreement or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumarrangement;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement Contract relating to the making acquisition or disposition of any such loanmaterial business (whether by merger, advance sale of stock, sale of assets or investment in excess of $25,000otherwise) pursuant to which the Company has material ongoing obligations entered into within the three years prior to the date hereof;
(iv) any Contract that as obligor or guarantor relating to Indebtedness (i) requires the Company to purchase in either case, whether incurred, assumed, guaranteed or secured by any product or service in excess of asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service300,000;
(v) any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that relates materially restricts the ability of the Company or any of the Company’s Subsidiaries to an acquisition (A) compete in any line of business or divestiture geographic area or with any Person during any period of time after the Closing or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyproperties;
(vi) any Contract under which to sell, lease, farmout, exchange or otherwise dispose of all or any part of the Oil and Gas Properties of the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceand its Subsidiaries;
(vii) all Contracts under which any Person (each Contract for the sale, purchase, exchange or other than disposition of Hydrocarbons produced from the Company) has directly Oil and Gas Leases or indirectly guaranteed Indebtedness ▇▇▇▇▇ of the Company in excess of $50,000and its Subsidiaries;
(viii) each Contract that contains any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Persondrilling commitments;
(ix) all Contracts involving each Contract for any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development material Derivative Transaction of the Company or similar arrangementany of its Subsidiaries;
(x) all Contracts involving any resolution joint development agreement, exploration agreement, participation, farmout, farmin or settlement program agreement or similar Contract (or series of any actual or threatened Action under which related Contracts) requiring the Company has or any obligation Subsidiary to make expenditures that would reasonably be expected to be in excess of (x) $1,000,000 in any calendar year or Liability that will continue after (y) $2,000,000 during the Closing Dateterm thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract limiting that provides for a “take-or-pay” clause or restraining any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of the Company or and its Subsidiaries per day over a period of one month (calculated on a yearly average basis) and for a term greater than 10 years, except for any successor thereto from engaging or competing in any manner, in any location or in any businessContracts that are terminable without penalty within 90 days;
(xii) all Affiliate Contractseach Contract that contains any standstill, “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal or any similar requirement or right in favor of any third party, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements or unit agreements affecting the business or the Oil and Gas Properties of the Company or any of its Subsidiaries;
(xiii) any Company IP Agreements as well as any each Contract under which the Company is a party providing for the license or group of or settlement with respect related Contracts reasonably expected to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other result in Transaction Expenses of more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;$100,000; and
(xiv) any Contract concerning the acquisitionthat constitutes a seismic, dispositiondata or geophysical license, occupancy, management agreement or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)permit.
(b) The Each Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete a valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding agreement of the Company Disclosure Schedule.
(c) Each Material Contract or one of its Subsidiaries, and is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement , and understanding (or complete description none of the material terms, as applicable), between the Company, on one handany Subsidiary of the Company or, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event Company’s knowledge, any other party is in default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default breach under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes terms of any right or obligation or the loss of any benefit thereunder. The such Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract, except for any such defaults or breaches which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Material Contracts. Except pursuant to an acquisition permitted by Section 4.1(d) or to employment or compensation arrangements with directors and officers, the Company shall not, and shall not permit any of its Subsidiaries to, enter into or amend or modify in any manner materially adverse to the Company and its Subsidiaries taken as a whole (ai) Section 4.10(aany contract or agreement (A) described in clause (i) and clause (ii) of the definition of “Company Disclosure Schedule sets forth a trueContract”, complete and correct list of each (B) containing actual or contingent obligations of the following Contracts Company or its Subsidiaries secured by a lien (other than Permitted Encumbrances) in excess of $15.0 million (except as otherwise permitted by Section 4.1(l)) (C) pursuant to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units its Subsidiaries is burdened from continuing indemnification, “earn out” or other Equity of the Company;
(ii) any Contract contingent payment obligations that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value each case would reasonably be expected to result in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
5.0 million (iiiprovided, that nothing in this clause (i)(C) all Contracts involving a loan (other than accounts receivable owing from trade debtors shall prohibit entering into customer agreements and supply agreements in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) or advance to (other than travel and entertainment advances to D) under which the employees Company or any Subsidiary of the Company extended in is the Ordinary Course of Business)landlord, tenant, subtenant or occupant with respect to real property that has an aggregate value, or investment in, any Person involves payment by or to the Company or any agreement relating to the making of any such loan, advance or investment in excess its Subsidiaries of more than $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party 25.0 million or (ii) requires any supply or sales agreement that the Company deal exclusively with a third party in connection with the sale has an aggregate value, or purchase of any product involves payment by or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging of its Subsidiaries of more than $75.0 million on an annual basis or competing in any mannerthat has an aggregate value, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which involves payment by or to the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice Subsidiaries of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) more than $150.0 million for the duration of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material termsagreement, as applicableexcept for renewal(s), between the Companymade following reasonable advance notice to Parent, on one hand, and the other parties thereto, substantially similar terms of existing contracts or replacements of existing contracts with new counterparties on the other hand, with respect substantially similar terms to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractexisting contract being replaced.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)
Material Contracts. (a) Except for this Agreement, the Company Employee Plans (including all Contracts thereunder), or as filed with the SEC, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) (A) any Contract providing for or governing the formation, creation, operation, management or control of a joint venture, strategic alliance, partnership or sharing of profits or revenue, in each case material to the Company and its Subsidiaries, taken as a whole; or (B) except Contracts or purchase orders for expenditures to the extent accounted for or reflected in the Company’s capital expenditure budget set forth in Section 4.10(a4.13(a)(i) of the Company Disclosure Schedule sets forth a trueLetter (the “Capex Budget”), complete and correct list of each of the following Contracts to which any Contract or non-trade purchase order from service providers or suppliers obligating the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution of its Subsidiaries to make any capital investment or capital expenditure in respect excess of $1,000,000 over the Membership Units remaining life of such Contract or other Equity of the Companysuch purchase order;
(ii) any Contract or non-trade purchase orders from service providers or suppliers that requires payments by its terms requires the payment by or on behalf of the Company or and of its Subsidiaries, or any Contract that requires payments to the Company or and of its Subsidiaries, in each case, in excess of $100,000 per annum 2,500,000 during the fiscal year ended August 31, 2024 (in each case, other than (A) Contracts or purchase orders for expenditures to the delivery by extent accounted for or reflected in the Company of goods Capex Budget, or services with a fair market value in excess of $100,000 per annum (B) Contracts or provides purchase orders for the Company to receive payments acquisition or disposition of raw materials, natural gas, other inventory, supplies, equipment, services or products in excess the ordinary course of $100,000 per annumbusiness);
(iii) all Contracts involving any Contract pursuant to which (A) it grants to any other Person a loan license, covenant not to sue or similar right under any material Company IP, (B) any other than accounts receivable owing from trade debtors Person grants to it a license, covenant not to sue or similar right under any material Intellectual Property used in the Ordinary Course its business, or (C) it agrees to limit its use or enforcement of Businessmaterial Company IP in any material respect (including pursuant to any co-existence or similar agreement), but excluding, in each case of (A) through (C): any (1) non-exclusive licenses granted to it with respect to “off the shelf” Software or advance Software that is readily commercially available pursuant to a standard “shrink wrap” or other similar standardized license agreement that has a purchase price or annual license fee of less than $1,000,000; (other than travel and entertainment advances to the employees of the Company extended 2) non-exclusive licenses granted in the Ordinary Course ordinary course of Business)business to any customer for such customer’s end-use of Company Products, or investment innon-exclusive licenses to or assignments from any employee, any Person or any agreement relating to the making of any such loancontractor, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product consultant, vendor or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party provider, solely in connection with the provision or receipt of services by it or such parties; (3) open source Software licenses; and (4) non-exclusive licenses incidental to its sale or purchase of any product or service;
(iv) any Contract governing the development or ownership of any Intellectual Property, Software or Company Product developed by or jointly with any other Person at the request or direction of such other Person which Intellectual Property, Software or Company Product is material to the business of the Company and its Subsidiaries, but excluding employment, consulting, services or invention assignment agreements entered into in the ordinary course of business with employees, contractors or consultants of the Company or its Subsidiaries, in each case, assigning all rights therein to the Company or its Subsidiaries;
(v) any Contract that relates entered into at any time since January 1, 2022: (A) relating to an the disposition or acquisition by it of any business, product line or other material assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (excluding, in any case, the acquisition or divestiture disposition of material assets that contains covenantsraw materials, indemnities natural gas, other inventory, supplies, equipment or products in the ordinary course of business or any utility Contract), including any put, call or similar right pursuant to which it could be required to purchase or sell any such business, product line or other contractual obligations that could impose a Liability that is material assets; or (B) pursuant to which it will acquire any interest, or will make an investment, (other than short term investments, including money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the CompanyCompany Balance Sheet or the notes thereto, incurred in the ordinary course of business) in any other Person (other than the Company and its Subsidiaries);
(vi) any Contract under which relating to the Company disposition or acquisition by it of any business, product line or other material assets of it or another Entity (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into on or after January 1, 2020 with continuing material indemnification obligations or (B) with any material remaining “earn out” or other contingent payment or consideration of it that has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset not been substantially satisfied prior to the date of the Company, other than a Permitted Encumbrancethis Agreement;
(vii) all Contracts under which any Person (other than Contract that by its terms limits in any material respect the Company) has directly or indirectly guaranteed Indebtedness ability of the Company and its Subsidiaries and, following the Closing, Parent and its Subsidiaries in excess their respective capacities as Affiliates of $50,000the Company or its Subsidiaries: (A) to engage in any line of business or compete with, or provide any product or service to, any other Person or in any geographic area; or (B) to acquire any product or other asset or any service from any Person, sell any product or other asset to any other Person, or transact business or deal in any other manner with any other Person;
(viii) any bonds Contract that by its terms: (A) grants exclusive rights to market, sell or Contracts of Guarantee in which deliver any product and that is material to the Company acts and its Subsidiaries, taken as a surety whole; (B) contains any “most favored nation” or guarantor similar provision in favor of the counterparty for any product and that is material to the Company and its Subsidiaries, taken as a whole; (C) contains a right of first refusal, first offer or first negotiation or any similar right with respect to an asset of the Company and its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole; (D) obligates it to purchase a specified minimum amount of goods or services, in each case, in excess of $1,000,000 (other than Contracts for the acquisition or disposition of raw materials, natural gas, other inventory, supplies, equipment or products in the ordinary course of business); or (E) that is material to the Company and its Subsidiaries, taken as a whole and provides for a “sole source” or similar relationship or contains any obligation provision that requires the purchase of all or a material portion of its requirements from any third party (fixed or contingent) of another Personother than utility Contracts);
(ix) all any Contract relating to Indebtedness of the Company and its Subsidiaries in excess of $1,000,000 over the remaining life of such Contract or creating a Lien (other than a Permitted Lien) on any of its assets or properties that is material to the Company and its Subsidiaries, taken as a whole, other than such Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, cosolely among the Company and its wholly-marketing, co-promotion, joint development or similar arrangementowned Subsidiaries;
(x) all Contracts involving any resolution settlement or settlement similar Contract arising out of any actual a Legal Proceeding or threatened Action under which Legal Proceeding: that (A) materially restricts or imposes any material obligation on it and was entered into on or after January 1, 2020; (B) materially disrupts its business as currently conducted; or (C) would require it to pay consideration valued at more than $1,000,000 following the Company has any obligation date of this Agreement and was entered into on or Liability that will continue after the Closing DateJanuary 1, 2020;
(xi) any material Contract limiting or restraining the Company or with any successor thereto from engaging or competing in any manner, in any location or in any businessGovernmental Entity;
(xii) all any Contract between or among it or its Subsidiary, on the one hand, and any directors, executive officers (as such term is defined in the Exchange Act) or any beneficial owner of five percent (5%) or more of the outstanding shares of any class of capital stock of it, or any Affiliate Contractsof the foregoing, on the other hand;
(xiii) any Company IP Agreements as well as any Contract under which the Company that is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;Collective Bargaining Agreement; or
(xiv) any other Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into other Material Contract), the termination of which would constitute a Company Material Adverse Effect. Each Contract of the type described in the Ordinary Course of Business;
(xviithis Section 4.13(a) any Contracts with any Governmental Authority to which or filed by the Company is as a party;
(xviii“material contract” pursuant to Item 601(b)(10) any Contracts that limitof Regulation S-K under the Securities Act, in any material respect, the ability together with each lease listed on Section 4.10(b) of the Company Disclosure Letter, is referred to compete in any line herein as a “Material Contract.” The Company has made available to Parent a true, correct and complete copy of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any each Material Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate existing as of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)date hereof.
(b) The Except (i) as does not constitute a Company Material Adverse Effect or (ii) to the extent that any Material Contract expires or terminates after the date hereof in accordance with its terms, each Material Contract is in material compliance full force and effect and is valid, binding and enforceable in accordance with its terms against the terms Company or its Subsidiary, as applicable, subject to the Enforceability Exceptions and provisions assuming the validity, binding nature and enforceability against the counterparty or counterparties thereto. Neither the Company nor any of each Material Contract. The Companyits Subsidiaries has, and and, to the Knowledge of the Company, the no other party to Person has, violated or breached, or committed any default under, any Material Contract is not in breach or default under Contract, and neither the Company nor any of its terms. The Company has not received notice Subsidiaries would, and, to the Knowledge of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the no other parties thereto, on the other handPerson would, with respect to the subject matter thereof. No event or circumstance has occurred that, with without notice or lapse of time time, or both, would constitute an event be in breach or violation of, or default under, any such Material Contract, where such violation, breach or default constitutes a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice regarding any actual or, to the Knowledge of the Company, threatened breach or violation of, or default under under, any such Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation Contract, or the loss of intention to cancel any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Radius Recycling, Inc.), Agreement and Plan of Merger (Radius Recycling, Inc.)
Material Contracts. (a) Section 4.10(a) Schedule 5.14 sets forth a correct list as of the date hereof of all of the Contracts of the following types to which any of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company Entities is a party or by which any of the Company Entities or their respective properties or assets is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):receives a benefit under:
(ia) all Contracts that contain restrictions providing for a merger, consolidation, acquisition or sale of all or a material (to the Company Entities, taken as a whole) portion of the assets of, or other extraordinary transaction in respect of, any Company Entity with respect or to payment of dividends any other Person, or any other distribution material capital investment in respect of the Membership Units any Person, in each case entered into since January 1, 2017 or pursuant to which any Company Entity has any ongoing indemnification or other Equity of the Companysimilar surviving obligations;
(iib) any Contract that by its terms requires (other than purchase orders or sales orders) entered into with a customer or supplier which involves the payment by or on behalf receipt of the Company an amount in excess of Five Million Dollars ($100,000 5,000,000) per annum or the delivery (measured by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for trailing (12) month period ending on the Company to receive payments in excess of $100,000 per annumInterim Balance Sheet Date) and which cannot be terminated within ninety (90) days;
(iiic) all Contracts involving for the purchase of materials, supplies, goods, services, equipment or other assets, which is with a loan Material Supplier (other than accounts receivable owing from trade debtors in purchase orders);
(d) for the Ordinary Course sale or license by a Company Entity of Business) materials, supplies, goods, services, equipment or advance to other assets, which is with a Material Customer (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Businesssales orders), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ive) any Contract that (i1) requires the a Company Entity to purchase its total requirements of any product or service in excess of $100,000 from a third party or that contains “take or pay” provisions, (ii2) requires contains a “most-favored-nation” clause or similar term that provides preferential pricing or treatment to any third party, (3) contains any non-competition or non-solicitation covenant by a Company Entity in favor of another Person or otherwise limits the freedom of a Company deal exclusively with Entity to engage in any line of business in any area or (4) grants any Person an option or a third party in connection with the sale first refusal, first offer or similar preferential right to purchase or acquire any assets of any product or serviceCompany Entity;
(vf) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companywith a Governmental Authority;
(vig) that is between a Company Entity, on the one hand, and any Related Party or EIS, on the other hand (each, an “Affiliate Agreement”);
(h) any credit agreement, loan agreement or indenture relating to Indebtedness of a Company Entity;
(i) any Contract under which the Company has Entities have permitted any outstanding Indebtedness or evidencing an Encumbrance on any property or material asset of the Company, to become encumbered by a Lien (other than a Permitted EncumbranceLien);
(viij) all Contracts under which any Person (other than the Company) has that provides for, directly or indirectly guaranteed Indebtedness indirectly, the establishment or operation or a partnership or joint venture, or otherwise involves a sharing of profits, losses, costs or liabilities with any Person;
(k) pursuant to which a Company Entity effected any compromise or settlement of any Proceeding since the Interim Balance Sheet Date;
(l) the primary purposes of which is the indemnification of any other Person by a Company Entity;
(m) that provides for a retention, severance, change in control or sale bonus payment in excess of One Hundred Thousand Dollars ($100,000) (or would provide for such bonus subject to the satisfaction of any conditions or contingencies) and any Company Retention Bonus Agreements;
(n) (A) that is a written Contract for the employment of any Employee located outside of the Company United States (i) with annual base salary and target annual cash bonus in excess of $50,000150,000; (ii) that is not terminable at will or upon notice of sixty (60) days or less for a cost (exclusive of costs arising prior to termination) of less than $200,000; or (iii) that would result in any payments to such person upon consummation or solely as a result of the Merger; (B) that is a written Contract for the employment of any Employee located in the United States (x) with an annual base salary in excess of $150,000; (y) that is not terminable at will; or (z) that would result in any payments to such individual upon the consummation or as a result of the Merger (either alone or in combination with another event);
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xio) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the a license to a Company Entity of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Company Licensed Intellectual Property (other than licenses of commercially available software Software licensed under a click-wrap or shrink-wrap license or subscription agreement, in each case, on a non-exclusive basis and hardware) and any Intellectual Property license agreements under which having an annual license, subscription or maintenance fee of $250,000 or less in the Company is currently a licenseeaggregate);
(xivp) any Contract concerning lease or agreement under which a Company Entity is lessee of, or holds or operates any personal property owned by any other party, for which the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Companyannual rent exceeds $250,000;
(xvq) all collective bargaining agreements entered into by pursuant to which a Company Entity has made or may make a capital investment in, loan to, acquisition or divestiture of the Company;Equity Interests or assets of, any Person, or the acquisition or divestiture of any business or third Person; and
(xvir) any Contract providing that the for a license by a Company indemnify any Person in an amount that would be material Entity of Company Owned Intellectual Property to the Company, a third party (other than any such agreement entered into non-exclusive licenses granted to a Company Entity’s, resellers and end-user customers in connection with the sale, distribution or use of a Company Entity’s products and services in the Ordinary Course ordinary course of Business;
business). The Company has provided to Purchaser a true and complete copy (xviior, with respect to any oral Contract, a written summary of the material terms and conditions of such oral Contract) any Contracts of each Contract set forth or required to be set forth on Schedule 5.14 (including all amendments, modifications, exhibits and schedules) (collectively with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respectReal Property Leases, the ability of the Company to compete “Material Contracts”). Each Material Contract is in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excludingfull force and effect and constitutes a legal, for certaintyvalid, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case binding obligation of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The CompanyEntity, and to the Knowledge of the Company’s Knowledge, the other party or parties thereto, enforceable against such Company Entity, and to any Material Contract is not in breach the Company’s Knowledge, such other party or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto parties in accordance with its respective terms terms, subject to the Enforceability Limitations. The Company Entities have performed or complied with all material covenants and (ii) in full force obligations under each Material Contract, and effect. Each neither the Company Entities nor, to the Company’s Knowledge, any other party to a Material Contract (is in, or description) sets forth the entire agreement and understanding (is alleged to be in, material breach of or complete description of the material termsdefault under such Material Contract, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No nor has there occurred an event or circumstance has occurred that, condition that with notice or lapse the passage of time or giving of notice (or both, ) would constitute an event of such a material breach or default under by a Company Entity or to the Company’s Knowledge, any other party to such Material Contract. No party to a Material Contract has provided notice to a Company Entity that it plans to terminate any Material Contract or, if in writing (or result in a termination thereof or would cause or permit to the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill Company’s Knowledge, oral), materially reduce its obligations thereunder in all material respects, and business with the Company has not received any notice of termination or intent to terminate by any party to any Material ContractEntities.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Material Contracts. (a) Section 4.10(a) 4.7 of the Company Disclosure Schedule sets forth a true, complete and correct list of each all of the following Material Contracts as of the date hereof and, prior to which the date hereof, the Company is a party or by which the has made available to Parent true copies of each Material Contract and summaries of all oral Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively. For purposes of this Agreement, the term “Material Contracts”):
” shall mean with respect to the Company or any of its Subsidiaries: (i) all Contracts that required to be disclosed pursuant to Item 601(b)(10) of Regulation S K of the SEC; and (ii) to the extent not included in the foregoing: (A) all Contracts for the future purchase or sale (in each case whether by merger, acquisition, purchase of an equity interest or otherwise) or lease of materials, supplies, merchandise, equipment or other personal property or assets which will involve consideration in excess of $500,000 in the aggregate or for the grant of any preferential right for any such future purchase, sale or lease; (B) all Contracts for the furnishing or receipt of services, the performance of which will involve consideration in excess of $500,000 in the aggregate; (C) all Contracts for the license of any Intellectual Property of the Company or its Subsidiaries to a third party entered into by the Company or its Subsidiaries; (D) all mortgages, pledges, conditional sales contracts, security agreements, factoring agreements or other similar agreements with respect to any assets of the Company which involve consideration in excess of $500,000 in the aggregate; (E) all non competition or similar Contracts which restrict in any material respect the geographic or operational scope of the business of the Company and its Subsidiaries, taken as a whole, or the ability of the Company and its Subsidiaries, taken as a whole, to enter into new lines of business; (F) all Contracts relating to borrowed money or other indebtedness; (G) all material distribution, joint venture, partnership, marketing, development or franchise Contracts; (H) all Contracts by which the Company or its Subsidiaries guarantee, endorse or otherwise become or are contingently liable for the debt, obligation or other liability of any other Person; (I) all Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
’s capital stock; (ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iiiJ) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is which are material to the Company;
(vi) Company or any Contract under of its Subsidiaries and which restrict the Company has or any outstanding Indebtedness of its Subsidiaries from disclosing any information concerning or evidencing an Encumbrance on obtained from any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) Business or currently enforceable Contracts, to the extent any Contracts disclosure thereof is prohibited thereby, with respect to any Governmental Authority to which the Company is currently pending potential sale of all or a party;
(xviii) any Contracts that limit, in any material respect, the ability substantial portion of the Company whether such sale is pursuant to compete in any line of business a merger or with any Person or in any geographic area or during any period of time;
otherwise); (xixK) all Contracts referred to in Section 4.8(a)(iii); (iL) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) all Contracts with independent contractors or consultants (or similar arrangements) to which be performed relating to capital expenditures of the Company is and/or its Subsidiaries with a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount value in excess of $100,000500,000 individually in any fiscal year; and (M) all material leases, individually (in the case of a leasesubleases, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any licenses and other Contract that is material Contracts relating to the operation of the business leased real properties of the Company and not otherwise disclosed pursuant to this Section 4.10(aits Subsidiaries (collectively, the “Leases”).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Silicon Storage Technology Inc), Merger Agreement (Microchip Technology Inc)
Material Contracts. (a) Except for Contracts set forth in Section 4.10(a3.11(a) of the Company Holdings Disclosure Schedule sets forth a true(collectively, complete and correct list of each of the following Contracts "Material Contracts"), neither Holdings (with respect to which the Business) nor any Transferred Company is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by:
(i) all Contracts any Contract that contain provides for payment to a Transferred Company for the performance of services in an amount in excess of $1,000,000 annually;
(ii) any Contract to be performed relating to capital expenditures (other than those provided for in the Capital Expenditure Plans of the Business for 1999) in excess of $500,000 in any calendar year, or in the aggregate require expenditures in excess of $2,000,000;
(iii) any Contract not entered into the ordinary course of business, requiring payments by or to the Transferred Companies in excess of $1,000,000;
(iv) any Contract which contains restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity capital stock of the a Transferred Company;
(iiv) any Contract that by its terms requires the payment by or on behalf of the Company relating to indebtedness for borrowed money in an amount in excess of $100,000 per annum 1,000,000 (excluding trade payables in the ordinary course of business, intercompany indebtedness and leases for telephones, copy machines, facsimile machines and other office equipment);
(vi) any lease (or the delivery sublease) of Real Property requiring payments by the Company of goods or services with a fair market value Transferred Companies in an amount in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum1,000,000 annually;
(iiivii) all Contracts involving a any loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course ordinary course of Businessbusiness in amounts not exceeding $1,000,000 in the aggregate), or investment inin (other than investments in any Transferred Company), any Person Person, or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000investment;
(viii) any bonds guarantee in respect of any indebtedness or Contracts obligation of Guarantee any Person in which an amount in excess of $1,000,000 (other than in the Company acts as a surety or guarantor ordinary course of business and other than with respect to any indebtedness or obligation (fixed or contingent) of another Personany Transferred Company);
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any material Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the any Transferred Company to compete engage in any line of business or to compete with any Person or in any geographic area or during any period of timePerson;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xxx) any Contract to purchasematerial amendment, lease modification or otherwise acquire the right to own, use or lease supplement in respect of any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as set forth in Section 4.10(a3.12(b) of the Company Holdings Disclosure Schedule.
(c) Each Material Contract is : (i) valid and binding on the there is no pending default under or breach of any Material Contract by Holdings or any Transferred Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handthereto, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event of a default under thereunder by Holdings or any Transferred Company party thereto, in any such case in which such default, breach or event, individually or in the aggregate, would have a Material Contract or result in a termination thereof or would cause or permit Adverse Effect on the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has Business; and (ii) no reason to believe any party to any such Material Contract will not fulfill its obligations thereunder has given written notice to Holdings or any Transferred Company of, or made a written claim against Holdings or any Transferred Company with respect to, any breach or default thereunder, in all material respectsany such case, and in which such breach or default, individually or in the Company has not received any notice of termination or intent to terminate by any party to any aggregate, would have a Material ContractAdverse Effect on the Business.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Fah Co Inc), Merger Agreement (Avis Rent a Car Inc)
Material Contracts. (ai) Section 4.10(a6.1(A)(t)(i) of the Company Allergan Disclosure Schedule sets forth a true, complete and correct list as of the date of this Agreement of each of the following Contracts (other than any Allergan Benefit Plan) to which the Company Allergan or any of its Subsidiaries is a party or by which the Company it is bound (each such Contract required to be so listed, and each of the following types of Contracts (other than any Allergan Benefit Plan) described below to which have not been entirely fulfilled Allergan or performed (such Contractsany of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, collectively, the an “Allergan Material ContractsContract”):
(A) each (i) all acquisition or divestiture Contract (including any Contracts that contain restrictions with respect pursuant to payment of dividends or which any other distribution in respect member of the Membership Units Allergan Group has transferred or other Equity agreed to transfer ownership of the Company;
any Intellectual Property) and (ii) license (including any Contract that by its terms in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a maximum potential value (or which otherwise requires the payment by receipt or on behalf making of the Company payments) in excess of $100,000 per annum 100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations), (y) involves the delivery by issuance of any Equity Securities of Allergan or any of its Subsidiaries to a Third Party following the Company date of goods this Agreement or services (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that is material to Allergan and its Subsidiaries, taken as a fair market whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum100 million;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivC) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution limits or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect purports to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability freedom of the Company Allergan or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during that would so limit or purport to limit, in any period material respect, the freedom of timeAbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions that restrict or purport to restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xxD) any Contract relating to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, third party indebtedness for an amount borrowed money in excess of $100,000100 million (whether incurred, individually (in the case assumed, guaranteed or secured by any asset) of a lease, per annum) Allergan or $150,000 in the aggregate (in the case any of a lease, for the entire term of the lease, not including any option term); andits Subsidiaries;
(xxiE) any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other Contract that similar agreement, which is material to the operation Allergan Group, taken as a whole;
(G) any Contracts or other transactions with any (A) executive officer or director of Allergan, or (B) affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(bExchange Act) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachsuch executive officer, default director or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.beneficial owner;
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement
Material Contracts. (a) Except as set forth in Section 4.10(a) 4.20 of the Company Disclosure Schedule sets or as filed as an exhibit with any Company SEC Document, and other than any Company Benefit Plan set forth a true, complete and correct list of each on Section 4.17 of the following Contracts to which Company Disclosure Schedules, neither the Company is nor any of its Subsidiaries is, as of the date hereof, a party to or bound by which the Company is bound and which have not been entirely fulfilled any loan or performed credit agreement, note, bond, mortgage, indenture, lease or other binding contract, agreement or commitment (such Contracts, collectively, the each a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect has been or would be required to payment be filed as a “material contract” by the Company pursuant to Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanySEC;
(ii) any Contract that by its terms requires the payment by establishes or on behalf of the Company in excess of $100,000 per annum governs a partnership or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development venture or similar arrangement;
(xiii) all Contracts involving that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for indebtedness of the Company or any resolution of its Subsidiaries in an amount in excess of $1,000,000;
(iv) with a Top Customer or settlement of any actual or threatened Action Top Supplier and under which the Company or any of its Subsidiaries has made or received payments in excess of $2,000,000 in the twelve months prior to the date hereof or which is otherwise material to the Company and its Subsidiaries, taken as a whole (other than purchase and sale orders entered into in the ordinary course of business consistent with past practice);
(v) for the purchase or sale of any entity or assets after the date hereof in excess of $1,000,000 (other than customer or supplier Contracts, including contracts that relate to inventory);
(vi) that is a collective bargaining agreement;
(vii) under which the Company or any of its Subsidiaries has made or received payments in excess of $1,000,000 since July 1, 2012 (other than purchase and sale orders entered into in the ordinary course of business consistent with past practice);
(viii) that provides for any obligation of the Company or Liability any of its Subsidiaries to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of the Company of an amount in excess of $2,000,000 or any other Person of an amount in excess of $1,000,000;
(ix) that will continue after is an outstanding power of attorney (other than powers of attorney granted with respect to foreign legal and tax matters or Intellectual Property related filings or which otherwise are not material to the Closing DateCompany and its Subsidiaries, taken as a whole);
(x) that provides for an obligation or liability of the Company or any of its Subsidiaries (whether absolute, accrued, contingent or otherwise) as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any third party that could result in payments in excess of $1,000,000, other than obligations between the Company and any of its Subsidiaries (and between Company Subsidiaries);
(xi) that restricts or prohibits in any Contract limiting or restraining material respect the ability of the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability Subsidiary of the Company to compete in any material line of business or with any Person or in any geographic area area, or during that limits in any period of timematerial respect the Persons to whom the Company can sell products or services;
(xixxii) all that requires the Company or any of its Subsidiaries to provide business, distribution or investment opportunities or pricing to any Person on an exclusive or most favored nation basis;
(ixiii) employment agreements (excludingthat is a hedge, for certaintycollar, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (option, forward purchasing, option, swap, derivative or similar arrangementsContract; or
(xiv) to which that is a Contract between the Company is a party or any of its Subsidiaries on the one hand, and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually ’s stockholders (in their capacity as such) on the case other hand. Each such Contract described in clauses (i)-(xiv) is referred to herein as a “Material Contract”. The Company has made available to Parent correct and complete copies of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)all Material Contracts.
(b) The Except for breaches, violations or defaults which would not have or reasonably be expected to have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of each Material Contract. The CompanyAdverse Effect, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Company’s knowledge as of the date hereof, each other party thereto, enforceable, subject to the Enforceability Exceptions, against the Company and each of its Subsidiaries party thereto in accordance with its respective terms terms, and to the Company’s knowledge as of the date hereof each other party thereto, and is in full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge as of the date hereof any other party to a Material Contract, is in full force and effect. Each violation of or default under any provision of any Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that with notice or the lapse of time or both, the giving of notice or both would constitute an event a violation of or default under thereunder by the Company or any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderits Subsidiaries. The Company or such Subsidiary has no reason performed all obligations required to believe any be performed by it under each Material Contract and, to the knowledge of the Company as of the date hereof, each other party to any each Material Contract will not fulfill its has performed all obligations thereunder in all material respects, and the Company has not received any notice of termination or intent required to terminate be performed by any party to any it under such Material Contract, except in each case as, individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)
Material Contracts. (a) Except for the contracts described in or filed as an exhibit to the Company SEC Documents or set forth in Section 4.10(a) 3.13 or Section 3.18 of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):), neither Company nor any of its Subsidiaries is a party to or is bound by any of the following:
(i) all Contracts that contain restrictions any contract or agreement entered into other than in the ordinary course of business consistent with respect to payment past practice for the acquisition of dividends the securities of or any other distribution in respect material portion of the Membership Units assets of any other Person or other Equity of the Companyentity;
(ii) any Contract that by its terms requires contract or agreement for the payment by or on behalf purchase of the Company services in excess of $100,000 per annum which cannot be cancelled by Company or the delivery by the Company any of goods its Subsidiaries without penalty or services with a fair market value further payment or without more than 45 days’ notice;
(iii) any contract, agreement or instrument in excess of $100,000 per annum that expires or provides for may be renewed at the Company to receive payments in excess option of $100,000 per annum;
(iii) all Contracts involving a loan (any Person other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating of its Subsidiaries so as to expire more than one year after the making date of any such loan, advance or investment in excess of $25,000this Agreement;
(iv) any Contract that material contract with any independent contractor or consultant (ior similar arrangement) requires the Company to purchase any product or service in excess of $100,000 from a third party or which is not cancelable without penalty and without more than thirty (ii30) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicedays’ notice;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenantstrust indenture, indemnities mortgage, promissory note, loan agreement or other contractual obligations that could impose contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Company or any of its Subsidiaries is a Liability that is material to the Companylender, borrower or guarantor;
(vi) any Contract under which contract or agreement limiting the freedom of Company has or any outstanding Indebtedness of its Subsidiaries or evidencing an Encumbrance on any property of their respective employees to engage in any line of business or asset of the Company, to compete with any other than a Permitted EncumbrancePerson;
(vii) all Contracts under which any Person (other than the contract or agreement with any Affiliate of Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds agreement of guarantee, support, indemnification, assumption or Contracts of Guarantee in which the Company acts as a surety endorsement of, or guarantor any similar commitment with respect to to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any obligation (fixed or contingent) other Person other than those entered into in the ordinary course of another Personbusiness;
(ix) all Contracts involving any joint venturematerial agreement which would be terminable other than by Company or its Subsidiaries or under which a payment obligation would arise or be accelerated, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementin each case as a result of the consummation of the transactions contemplated by this Agreement;
(x) all Contracts involving any resolution material alliance, cooperation, joint venture, stockholders’ partnership or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datesimilar agreement;
(xi) any Contract limiting broker, distributor, dealer, agency, sales promotion, market research, market consulting or restraining advertising agreement involving in excess of $100,000 (other than software licenses entered into in the Company or any successor thereto from engaging or competing in any manner, in any location or in any ordinary course of business);
(xii) all Affiliate Contractsany material research, development, sales representative, marketing or reseller agreement, or any service, support or maintenance agreement related to the business or technology of Company or any of its respective Subsidiaries;
(xiii) any Company IP Agreements as well as material agreement, option or commitment or right with, or held by, any Contract under which the Company is a party providing for the license of Third Party to acquire, use or settlement with respect have access to any Intellectual Property includingassets or properties, without limitationor any interest therein, the Company’s Intellectual Property of Company or any of its Subsidiaries (other than commercially available software and hardware) and any Intellectual Property license agreements under which licenses entered into in the Company is currently a licenseeordinary course of business);
(xiv) any Contract concerning the acquisitionmaterial agreement that affects or relates to Company IP, dispositionincluding, occupancywithout limitation, management any material agreement pursuant to which any person or operation of entity is authorized to use or has an ownership or security interest in any Real Property owned, leased or used by the CompanyCompany IP;
(xv) all collective bargaining agreements entered into any material contract or agreement which would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by the Company;this Agreement; and
(xvi) any Contract providing that other contract the loss of which would have a Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Company and each of its Subsidiaries have performed all of the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged to be in default in respect of, each Material Contract to which Company or any Subsidiary is a party or by which Company or any Subsidiary is bound, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. Each of the Material Contracts is in material compliance with the terms full force and provisions of each Material Contract. The Companyeffect, and to the Knowledge of the Company, the without amendment (other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth than as disclosed in Section 4.10(a) 3.13 of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Companyand there exists no default or event of default or event, on one handoccurrence, and the other parties thereto, on the other handcondition or act, with respect to Company or any of its Subsidiaries or, to the subject matter thereof. No knowledge of Company, with respect to any other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or circumstance has occurred that, with notice or lapse of time or bothcondition, would constitute an become a default or event of default under any Material Contract Contract, except, as would not, individually or result in a termination thereof the aggregate, be material to Company. True, correct and complete copies of all Material Contracts have been furnished or would cause made available to Parent or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason filed as exhibits to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractSEC Documents.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Palmsource Inc)
Material Contracts. (a) Except as disclosed in any Company Report filed and publicly available or as set forth on Section 4.10(a) 3.16 of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each or to the extent any such Contracts constitute Employee Plans, as of the following Contracts to which filing date of the Chapter 11 Plan no Endo Company is party to or bound by (each such Contract, a party or by which the Company is bound “Material Contract” and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any Affiliate or current or former officer or director of dividends any Endo Company (other than employment-related Contracts or any other distribution in respect of the Membership Units or other Equity of the CompanyEmployee Plans);
(ii) Contracts relating to any Contract that material business, equity or asset acquisition by its terms requires the payment by any Endo Company or on behalf any disposition of any significant portion of the business, equity or assets of any Endo Company (in excess each case other than acquisitions or dispositions involving aggregate payments of less than $100,000 per annum 1,000,000 or the delivery by the Company acquisition, sale or disposition of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended Inventory in the Ordinary Course of Business), in each case, since January 1, 2023;
(iii) any Contract that (A) relates to Indebtedness under clauses (a) or investment in(b) of the definition thereof of any Endo Company; (B) relates to the mortgaging or pledging of, or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on, any Person of the assets or any agreement relating to the making properties of any such loanEndo Company; or (C) is in the nature of a capital or direct financing lease that is required by GAAP to be treated as a long-term liability involving payments above $1,000,000 annually, advance or investment in excess each case other than any Contract under which the Liabilities of $25,000the applicable Endo Company will be fully discharged under the Bankruptcy Code;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceCollective Bargaining Agreement;
(v) any Contract that relates pursuant to which an acquisition Endo Company (A) is granted or divestiture of material assets that contains covenants, indemnities obtains or other contractual obligations that could impose a Liability agrees to grant or obtain any right to use or otherwise exploit any Intellectual Property that is material to the Company;
Business, (viB) any Contract under which the Company has any outstanding Indebtedness is restricted in its right to use or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to register any Intellectual Property including, without limitation, included in the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company Transferred Assets that is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the CompanyBusiness, or (C) permits or agrees to permit any other than Person to use, enforce or register any material Intellectual Property included in the Transferred Assets, including any such agreement license agreements, coexistence agreements and covenants not to sue; in each case excluding any Contracts (i) containing non-exclusive licenses of Intellectual Property relating to the development, manufacture, marketing, advertising, promotion, distribution, sale or other commercialization of Products entered into in the Ordinary Course of Business, in each case that are not individually material to the Business or (ii) entered into for commercially available “off-the-shelf” Software licensed to a Seller on a non-exclusive basis;
(xviivi) any Contracts Contract or consent decree with or from any Governmental Authority to which the Company is a partyAuthority;
(xviiivii) any Contracts Contract that limitimposes on any Endo Company or any of their respective Affiliates (including Buyers and their Affiliates following the Closing) (other than those contained in confidentiality agreements or similar Contracts) (A) any restriction on soliciting customers or employees or any non-competition restrictions, (B) any restriction on entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any part of the world, (C) a “most favored nation” pricing provision or exclusive marketing or distribution rights relating to any products or territory or minimum purchase obligations or exclusive purchase obligations with respect to any goods or services binding such Endo Company or its Affiliates in favor of the counterparty, or (D) other than restrictions that will cease to be effective on and after the Closing, any restriction on either the payment of dividends or distributions or the incurrence of Encumbrances on the property or assets of any Endo Company;
(viii) any Contract with the customers and suppliers required to be listed on Section 3.18(a) or Section 3.18(b) of the Disclosure Letter;
(ix) any Contract with a sole source supplier, pursuant to which such supplier provides to an Endo Company equipment, materials or services that are necessary for the sale, performance, manufacturing or support of the Business;
(x) any irrevocable power of attorney given by any Endo Company to any Person for any purpose whatsoever with respect to any Endo Company; and
(xi) any agreement relating to any strategic alliance, joint development, joint marketing, partnership, joint venture or similar arrangement (including any such Contract involving a sharing of revenues, profits, losses, costs or liabilities).
(b) Except as set forth on Section 3.16(b) of the Disclosure Letter, Sellers have made available to Buyers a true, correct and complete copy of each Material Contract, as amended to date. As of the filing date of the Chapter 11 Plan, each Material Contract is, and as of the Closing Date and subject to approval of the Bankruptcy Court, assuming payment of the Cure Claims, each Transferred Contract will be, valid and binding on the Endo Companies and, to the Knowledge of the Sellers, the counterparties thereto, and in full force and effect, 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). As of the filing date of the Chapter 11 Plan, to the Knowledge of the Sellers, no party has repudiated in writing any material provision of a Material Contract or given written notice that a Material Contract has terminated or will be terminating and, excluding the effect of the Bankruptcy Cases, no Endo Company is in breach of, or default under, in any material respect, the ability a Material Contract to which it is a party. As of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate filing date of the CompanyChapter 11 Plan, except for an amount in excess of $100,000violations, individually (in the case of breaches or defaults which have been cured and for which no Endo Company has any Liability, or which will be cured as a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term result of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation payment of the business of the applicable Cure Claims, no Endo Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companyand, and to the Knowledge of the CompanySellers, the no other party to any Material Contract is not Contract, has breached or defaulted in breach any material respect under, or default under any of its terms. The Company has not received notice of any breachimproperly terminated, default revoked or notice of termination by any Person under accelerated, any Material Contract. A true, complete and correct copy there exists no condition or event which, after notice, lapse of time or both, would constitute any such breach, default, termination, revocation or acceleration, in each written case as would not, individually or in the aggregate, reasonably be expected to have a Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure ScheduleAdverse Effect.
(c) Each Material Contract is Section 3.16(c) of the Disclosure Letter lists each material insurance policy maintained by the Endo Companies as of the filing date of the Chapter 11 Plan, and the deductibles and coverage limits for each such policy. To the Knowledge of Sellers, (ia) valid the Endo Companies own or hold policies of insurance, or are self-insured, of the types and binding on in amounts providing reasonably adequate coverage against all risks customarily insured against by companies in similar lines of business as the Company party thereto in accordance with its respective terms Endo Companies or as may otherwise be required by applicable Law and (iib) all such insurance policies are in full force and effecteffect except for any expiration thereof in accordance with the terms thereof occurring after the date of this Agreement. Each Material Contract (The Endo Companies have not received written notice of cancelation or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, modification with respect to the subject matter thereof. No such insurance policies other than in connection with ordinary renewals, and there is no existing default or event or circumstance has occurred thatwhich, with the giving of notice or lapse of time or both, would constitute an event a default by any insured thereunder. All premiums in respect of default each insurance policy maintained by the Endo Companies have been paid, or will be paid, when due. There is no claim pending under any Material Contract such insurance policies as to which coverage has been questioned, denied or result in a termination thereof or would cause or permit disputed by the acceleration or other changes underwriters of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractsuch policies.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Material Contracts. (a) As of the date of this Agreement, except for this Agreement or the Company Benefit Plans, neither the Company nor any of its Subsidiaries is a party to or bound by: (A) any Contract relating to indebtedness for borrowed money or any financial guaranty in excess of $100,000; (B) any Contract that limits the ability of the Company or any of its Subsidiaries to compete in any business line or in any geographic area; (C) any Contract that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument; (D) any Contract that involved expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the last fiscal year or is expected to involve expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the next fiscal year; (E) any Contract that involved, since January 1, 2004, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person (other than acquisitions or dispositions of assets in the ordinary course of business, including acquisitions and dispositions of inventory); (F) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (G) any material joint venture or partnership Contract; (H) any Contract that 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 amount of assets or business; and (I) any Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC (all contracts of the type described in this Section 4.10(a4.19(a) (being referred to herein as “Company Material Contracts”).
(b) Section 4.19(b) of the Company Disclosure Schedule sets forth a true, true and complete and correct list of each the Company Material Contracts. True, correct and complete copies have been made available to Parent of the following all Company Material Contracts to which the Company or any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contractsparty; provided, collectivelyhowever, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates need not provide to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) Parent any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of Material Contracts or settlement with respect portions thereof that contain confidentiality provisions or are otherwise subject to any Intellectual Property restrictions on disclosure including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material restrictions relating to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedulesecurity clearance.
(c) Each Neither the Company nor any Subsidiary of the Company nor, to the knowledge of the Company, any other party, is in material breach of or material default under the terms of any Contract that would qualify as a Company Material Contract pursuant to Section 4.19(a)(A), (C), (D), (G) or (I) (each, a “Specified Contract”). Except as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company nor, to the knowledge of the Company, any other party, is in material breach of or material default under the terms of any Company Material Contract that is not a Specified Contract. 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, each Specified Contract, and, except as would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract that is not a Specified Contract or a Contract of the type referred to in Section 4.19(a)(B) or (i) H), is a valid and binding on obligation of the Company or the Subsidiary of the Company which is party thereto in accordance with its respective terms and, to the knowledge of the Company, of each other party thereto, and (ii) is in full force and effect. Each Material Contract , except that (or descriptioni) sets forth the entire agreement and understanding (or complete description of the material termssuch enforcement may be subject to applicable bankruptcy, as applicable)insolvency, between the Companyreorganization, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out moratorium or other similar type Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of payments) or noncompetition agreementspecific 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.
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Material Contracts. (a) Section 4.10(a) Except for this Agreement and except for any Company Real Property Leases, Company Employee Benefit Plans and insurance policies or contracts pursuant to which any Group Company ceded or assumed insurance or reinsurance, as of the Company Disclosure Schedule sets forth a trueOriginal Agreement Date, complete and correct list of each of the following Contracts to which the no Group Company is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any:
(i) all Contracts that contain restrictions agreements with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyGovernmental Entities;
(ii) any Contract agreements that by its terms requires the payment by limit or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company purport to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, limit the ability of the any Group Company to compete in any line of business or with any other Person or in any geographic area or during any period of time;
(xixiii) all joint venture, partnership, strategic alliance and business acquisition or divestiture agreements;
(iiv) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the an Affiliate of any Group Company is a party (other than agreements solely among one Group Company and one or more other Group Companies);
(v) agreements relating to issuances of securities of any Group Company;
(vi) agreements or indentures relating to Indebtedness or undrawn letters of credit;
(vii) leases or agreements under which are any Group Company is the lessee of or holds or operates any tangible property, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not cancellable without exceed $500,000;
(viii) leases or agreements under which any Group Company is the lessor of or permits any third party to hold or operate any tangible property, owned or controlled by the Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(ix) contracts that relates to any material penalty disposition or without acquisition of assets or properties by any Group Company, or any merger, amalgamation or business combination with respect to any Group Company;
(x) material agreements containing most favored nations or most favored customer provisions or non-competition or non-solicitation covenants (other than employee non-competition and non-solicitation covenants);
(xi) contracts that provide for the guarantee of any liability of any Person (other than a Group Company);
(xii) other contracts that involves the expenditure, payment or receipt of more than ninety $500,000 in the aggregate and is not terminable by the Company without penalty on notice of 90 days or less;
(90xiii) days’ noticeany material capital maintenance or similar agreements pursuant to which any Group Company has agreed to contribute capital or surplus to any other Group Company or to any third party under specified circumstances and/or maintain such Group Company or third party’s capital or surplus at specified levels; and
(xxxiv) contracts that grant binding authority to any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case insurance agent of a leaseGroup Company (collectively, per annumwith subsections (i) or $150,000 in through (xiii), and together with Company Real Property Leases, Company Employee Benefit Plans, Group Company IP Agreements, Company Reinsurance Agreements and Company Agent Contracts, the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the “Company and not otherwise disclosed pursuant to this Section 4.10(aMaterial Contracts”).
(b) The Company is in material compliance with the terms has provided to Parent correct and provisions complete copies of each all Company Material ContractContracts, including any amendments thereto. The Company, and to the Knowledge of the Company, the other party to any Each Company Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto applicable Group Company, in full force and effect and enforceable in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth against such Group Company and, to the entire agreement and understanding (or complete description knowledge of the material terms, as applicable), between the Company, on one handeach other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). During the other parties theretopast two (2) years, on the other hand, with respect to the subject matter thereof. No no Group Company has received written notice of any event or circumstance has occurred thatcondition that constitutes, with or, after notice or lapse of time or both, would constitute an event of will constitute, any default under or any cancellation of any Company Material Contract, except for defaults that have not been or reasonably would not be expected to be material to any Group Company party to such Company Material Contract. To the knowledge of the Company, there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute, a default on the part of any party under any Company Material Contract or result in a the termination thereof of, or would cause or permit the acceleration or other changes modification of any right or obligation or the loss of any benefit thereunder, and no Group Company or, to the knowledge of the Company, any third party has violated any provision of, or failed to perform any obligation required under the provisions of any Company Material Contract, except for defaults, violations or failures that have not been or reasonably would not be expected to be material to any Group Company party to such Company Material Contract. The No Group Company has no reason to believe any that is party to any Company Material Contract will not fulfill its obligations thereunder in all and, to the knowledge of the Company, no counterparty under any Company Material Contract is insolvent or the subject of a rehabilitation, liquidation, conservatorship, receivership, bankruptcy or similar proceeding. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereunder shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the material respects, and the rights of any Group Company has not received under any notice of termination or intent to terminate by any party to any Company Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation, Agreement and Plan of Amalgamation (Enstar Group LTD)
Material Contracts. (a) Section 4.10(a5.13(a) of the Company Arch Disclosure Schedule Letter sets forth a true, correct and complete and correct list as of each the date hereof of all of the following types of Contracts used or held for use primarily in or related primarily to the operation or conduct of the Arch Business that are to be transferred to and assumed by the JV Entities as of the Closing Date and to which the Company Arch or any of its Affiliates is a party or by to which any of the Company is bound and which have not been entirely fulfilled Arch Contributed Assets or performed the Arch Transferred Subsidiaries are subject, in each case other than any Excluded Assets (such Contractseach, collectively, the an “Arch Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other Equity of the Companysimilar agreement pursuant to which any material Indebtedness for borrowed money is outstanding or may be incurred;
(ii) any Contract that by its terms requires (other than any coal supply agreement, or purchase order or commitment to sell or offer to sell coal) with a remaining term of more than one year from the date hereof which is expected to involve the payment by or on behalf of the Company an amount in excess of $100,000 per annum 10,000,000 or the delivery by the Company receipt of goods or services with a fair market value an amount in excess of $100,000 per annum or provides for 10,000,000 in the Company to receive payments in excess aggregate over the remaining term of $100,000 per annumsuch Contract;
(iii) all Contracts any joint venture, partnership or similar organizational Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course sharing of Business) profits or advance losses related to (other than travel and entertainment advances to the employees all or any portion of the Company extended in the Ordinary Course of Arch Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company granting to any Person an option, right of first offer or right of first refusal to purchase or acquire any product or service in excess of $100,000 from a third party or Arch Contributed Asset (ii) requires that the Company deal exclusively with a third party in connection with the sale or other than purchase of any product or serviceoptions for additional coal volumes);
(v) any Contract that relates (A) provides for exclusive rights for the benefit of any third party, (B) grants “most favored nation” status to an acquisition any third party or divestiture (C) requires Arch or any of material assets that contains covenantsits Affiliates to provide any minimum level of service, indemnities in each case which (1) are, or other contractual obligations that could impose in a Liability that is manner which is, material to the CompanyArch Business taken as a whole and (2) may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(vi) any Contract under which that restricts in any material respect the Company has ability of Arch or its Affiliates (or could restrict in any outstanding Indebtedness or evidencing an Encumbrance on any property or asset material respect the ability of the Company, other JV Entities) to compete in any business or with any Person in any geographical area and which may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than a Permitted Encumbrance90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(vii) any Contract with a remaining term of more than one year from the date hereof that could require the JV Entities to purchase all Contracts under (or a specified portion of) their total requirements of any product or service from a third party or that contains “take or pay” provisions and which any Person (other than A) is expected to involve the Company) has directly or indirectly guaranteed Indebtedness payment of the Company an amount in excess of $50,00010,000,000 in the aggregate during the fiscal year ending December 31, 2019 or any future fiscal year and (B) may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(viii) any bonds Contract relating to the disposition or Contracts acquisition by Arch or any of Guarantee its Affiliates of any material business or any material amounts of assets (other than in which the Company acts as a surety ordinary course of business) with obligations remaining to be performed or guarantor with respect to any obligation (fixed or contingent) of another PersonLiabilities continuing after the date hereof;
(ix) all Contracts involving any joint venturelease or agreement (including capital lease arrangements) under which Arch or any of its Affiliates is lessee of, partnershipor holds or operates, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementany Tangible Personal Property for which the annual rental costs exceed $10,000,000;
(x) all Contracts involving any resolution coal supply agreement, or settlement purchase order or commitment to sell or offer to sell coal, (A) with a remaining term of more than three years from the date hereof or (B) with remaining deliverable tonnage of (1) 10,000,000 tons from any actual mines located in Wyoming that are set forth on Schedule 1.1(a) or threatened Action under which the Company has (2) 1,500,000 tons from any obligation or Liability mines located in Colorado that will continue after the Closing Dateare set forth on Schedule 1.1(a);
(xi) any Contract limiting involving swaps, futures, derivatives or restraining similar instruments, regardless of value, except such Contracts entered into as a hedging activity in the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessordinary course of business consistent with Arch’s past practice and internal policy guidelines;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under pursuant to which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which is providing tax abatements or other similar economic incentives in connection with the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeArch Business; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxixiii) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Arch Business.
(b) The Company is Arch and its Affiliates have duly performed and complied in all material compliance respects with the terms and provisions of their respective obligations under each Arch Material Contract. The Company, and to the Knowledge None of the Company, the other party to any Material Contract is not in breach Arch or default under any of its terms. The Company Affiliates has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by default from any other party to any such Arch Material Contract. To the Knowledge of Arch, no other party to such Arch Material Contract is in default of its obligations thereunder.
(c) Except as set forth on Section 5.13(c) of the Arch Disclosure Letter, Arch has made available to Peabody true and complete copies of each Arch Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Implementation Agreement (Arch Coal Inc), Implementation Agreement (Peabody Energy Corp)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xx) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a trueSchedule, complete and correct list of each as of the following Contracts to which date hereof, none of the Company or any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such following Contracts, collectively, the “Material Contracts”)::
(i) all Contracts any Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any Contract that by its terms requires relating to the payment by formation, creation, operation, management or on behalf control of any Subsidiary of the Company in excess of $100,000 per annum or the delivery by the Company of goods any other partnership, joint venture, strategic collaboration, global affiliation or services with a fair market value in excess of $100,000 per annum business cooperation, limited liability company or provides for the Company to receive payments in excess of $100,000 per annumsimilar arrangement;
(iii) all Contracts any Contract involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and entertainment advances allowances to the employees of the Company and any of its Subsidiaries extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000for more than US$5,000,000;
(iv) any Contract that (i) requires involving Indebtedness of the Company to purchase or any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase its Subsidiaries of any product or servicemore than US$5,000,000;
(v) any Contract that relates to an acquisition (including so called take-or-pay or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vikeep-well agreements) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person person (other than the CompanyCompany or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries of more than US$5,000,000;
(vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances;
(vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(viii) any bonds Contract for the acquisition, disposition, sale, transfer or Contracts lease (including leases in connection with financing transactions) of Guarantee in which properties or assets of the Company acts or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personwhich claims are pending;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000;
(x) any obligation Contract involving a standstill or Liability that will continue after the Closing Datesimilar arrangement;
(xi) any non-competition Contract limiting or restraining other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any successor thereto from engaging or competing of its Subsidiaries to compete in any mannergeographic area, in any location industry or in any line of business;
(xii) all Affiliate Contractsany Contract for the employment of any senior executive officer;
(xiii) any Company IP Agreements as well as any Contract under that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeUS$5,000,000;
(xiv) any Contract concerning (other than Contracts granting Company Options, or Company RSs) giving the acquisitionother party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, dispositionincluding the Merger, occupancy, management or operation where (A) such Contract requires any payment in excess of any Real Property owned, leased or used US$5,000,000 to be made by the CompanyCompany or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) all collective bargaining agreements entered into any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the CompanyCompany or any of its Subsidiaries;
(xvi) any Contract providing that for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company indemnify or any Person of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property, in an amount that would be material to the Companyeach case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness;
(xvii) any Contracts with any Governmental Authority to which the Company is a partyContract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contracts Contract between or among the Company or 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 limit, involves payments of more than US$5,000,000 in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timeone year;
(xix) all each Control Agreement and any other any Contract which (iA) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which provides the Company is with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a party and which are not cancellable without material penalty majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or without more than ninety any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (90C) days’ notice; andtransfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Company;
(xx) any Contract to purchase, lease between the Company or otherwise acquire the right to own, use any of its Subsidiaries and any director or lease any property or assets, including such Contracts entered into by an Affiliate executive officer of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) Company or $150,000 in the aggregate (in the case of a lease, for the entire term any person beneficially owning five percent or more of the lease, not outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including any option termthose that would be required to be disclosed if the Form 20-F were filed as of the date hereof); andor
(xxi) any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract described in clauses (i) to (xxi) and each such Contract that is material would be a Material Contract if it had not been filed as an exhibit to the operation of the business of the Company and not otherwise disclosed pursuant SEC Reports is referred to this Section 4.10(a)herein as a “Material Contract.”
(b) The Except as would not have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect: (i) each Material Contract. The Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Knowledge Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, the other party to any each Material Contract is not a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company and, to the knowledge of the Company, no counterparty, is or is alleged to be in breach or violation of, or default under under, any Material Contract; (iv) to the knowledge of the Company, no person intends to terminate any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of its terms. The Company has not received notice the rights of any breach, default or notice of termination by any Person Group Company under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) This Agreement, the Company Benefit Plans, the Contracts filed with the SEC as exhibits to the Filed SEC Documents, and those Contracts listed in Section 4.10(a) 4.19 of the Company Disclosure Schedule sets forth a trueLetter (such contracts, complete and correct list collectively, the “Company Material Contracts”) constitute all of each of the following Contracts to which Contracts, whether written or oral (without duplication), that the Company or any of its Subsidiaries is a party to or bound by which as of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
date hereof: (i) all Contracts that contain restrictions with respect to payment any “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity SEC) of the Company;
; (ii) any employment, severance or consulting Contract that by its terms requires the payment by or on behalf offer letter with an employee or former employee, officer or director of the Company or any Subsidiary of the Company that will require the payment of amounts by the Company or any Subsidiary of the Company, as applicable, after the date hereof in excess of $100,000 200,000 per annum or the delivery annum, other than those employment agreements, offer letters and/or employment contracts that are terminable at-will by the Company or a Subsidiary, as applicable, on no more than one month’s notice or the minimum required notice period under applicable law; (iii) any collective bargaining Contract, or any other agreement or work rule or practice with any labor union, labor organization or works council; (iv) any Contract for capital expenditures or the acquisition or construction of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive fixed assets which requires aggregate future payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
5,000,000; (v) any Contract that relates containing covenants of the Company or any Subsidiary of the Company to an acquisition indemnify or divestiture hold harmless another Person or group of material assets that contains covenantsPersons, indemnities unless such indemnification or other contractual obligations that could impose hold harmless obligation to such Person, or group of Persons, as the case may be, would not reasonably be expected to exceed a Liability that is material to the Company;
maximum of $2,000,000; (vi) any Contract under which the Company has any outstanding Indebtedness that limits or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect purports to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company or any of its Subsidiaries or Affiliates (including, following the Merger, Parent or any of its Subsidiaries or Affiliates, including the Surviving Corporation) to compete engage in any line of business or compete with any Person or obtain products, commodities or services in any geographic area area; (vii) any license, royalty Contract or during other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by the Company or any period Subsidiary of time;
the Company in excess of $500,000 per annum; (xixviii) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) Contract pursuant to which the Company is or any Subsidiary of the Company has entered into a party and which are not cancellable without material penalty partnership or without more than ninety joint venture with any other Person; (90) days’ notice; and
(xxix) any indenture, mortgage, loan, guarantee or credit Contract to purchaseunder which the Company or any Subsidiary of the Company has outstanding indebtedness or any outstanding note, lease bond, indenture or other evidence of indebtedness for borrowed money or otherwise acquire the right to ownor any guaranteed indebtedness for money borrowed by others, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Companyin each case, for or guaranteeing an amount in excess of $100,0005,000,000, individually other than any such indebtedness between the Company (in the case of a lease, per annumwhether as creditor or debtor) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including and any option term); and
(xxi) any other Contract that is material to the operation of the business wholly owned Subsidiary of the Company or between any wholly owned Subsidiaries of the Company; (x) any Contract under which the Company or any Subsidiary of the Company is (A) a lessee of real property, (B) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, (C) a lessor of real property, or (D) a lessor of any tangible personal property owned by the Company or any Subsidiary of the Company, in each case which requires annual payments in excess of $500,000; (xi) any Contract other than a Company Benefit Plan which requires payments by the Company or any Subsidiary of the Company in excess of $500,000 per annum containing “change of control” or similar provisions; (xii) all sole source or material limited source supply agreements; (xiii) any Contract (other than Contracts of the type described in subclauses (i) through (xii) above) that involves aggregate payments by or to the Company or any Subsidiary of the Company in excess of $500,000 per annum; and not otherwise disclosed pursuant (xiii) any Contract the termination or breach of which, or the failure to obtain consent in connection with the transactions contemplated hereby in respect of which, would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered or made available to Parent prior to the date of this Agreement complete and correct copies of each Company Material Contract listed in Section 4.10(a)4.19 of the Company Disclosure Letter.
(b) The (i) Each Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto in accordance with its respective terms thereto, as applicable, and (ii) in full force and effect. Each , except where the failure to be valid, binding and in full force and effect, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Contract Adverse Effect, (ii) the Company and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Material Contract, except where such noncompliance, either individually or descriptionin the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, and (iii) sets forth neither the entire agreement and understanding (or complete description Company nor any of its Subsidiaries has received written notice of the material terms, as applicable), between the Company, on one handexistence of any, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No knowledge of the Company there exits no, event or circumstance has occurred thatcondition which constitutes, with or, after notice or lapse of time or both, would constitute an event will constitute, a material default on the part of default the Company or any of its Subsidiaries under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The such Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract, except where such default, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Material Contracts. (a) Section 4.10(a) of Except for this Agreement and the Contracts filed as exhibits to the Company Disclosure Schedule sets forth a trueSEC Reports filed with the SEC prior to the date of this Agreement, complete and correct list of each of the following Contracts to which the no Group Company is a party to, and no Group Company’s properties or by which assets are bound by, any of the Company is bound and which have not been entirely fulfilled or performed types of Contracts listed in clauses (i) through (xi) of this Section 3.15(a) (such Contracts, collectively, types of Contracts being the “Material Contracts”):
(i) all Contracts each Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity of Instructions to Exhibits to the Company’s most recently filed annual report on Form 20-F;
(ii) each Contract relating to any Contract that by its terms requires the payment by Indebtedness or on behalf of the Company Lien in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumRMB30 million;
(iii) all Contracts each Contract in respect of any (A) joint venture, strategic cooperation or collaboration arrangement, joint sales or marketing agreement, or partnership arrangement, in each case, that is material to the business of the Group Companies taken as a whole, or (B) other agreement involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course sharing of Business) profits, losses, costs or advance to (other than travel and entertainment advances liabilities by any Group Company that is material to the employees business of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Group Companies taken as a whole;
(iv) any each Contract that involves the acquisition or disposition, directly or indirectly (iby merger, license or otherwise), of any securities of any person (other than a Company Share Award) requires the Company to purchase or any product or service in excess of $100,000 from assets that have a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale fair market value or purchase price of any product or servicemore than RMB30 million;
(v) any each Contract that relates to an acquisition or divestiture with a Governmental Authority in excess of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the CompanyRMB30 million;
(vi) any each Contract under which the Company has any outstanding Indebtedness with a Major Customer or evidencing an Encumbrance on any property or asset Major Supplier in excess of the Company, other than a Permitted EncumbranceRMB30 million;
(vii) all Contracts under which any Person (other than the Company) has directly each Contract with a sales representative or indirectly guaranteed Indebtedness of distributor with expected aggregate annual payments by or to the Company or any of its Subsidiaries in excess of $50,000RMB30 million;
(viii) each Contract (including any bonds distribution agreements) that limits, or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect purports to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the any Group Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is time in a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract manner that is material to the operation of Group Companies, taken as a whole, or any Contract that grants any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, exclusive rights or restrictions resulting therefrom are material to the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).Group Companies, taken as a whole;
(bix) The Company is each Contract in material compliance with the terms and provisions excess of each Material Contract. The Company, and to the Knowledge of the Company, the other party to RMB1,000,000 between any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Group Company, on the one hand, and any directors or officers of any Group Company or their immediate family members or shareholders (other than the other parties theretoChairman Parties) of any Group Company holding more than 5% of the voting securities of any Group Company, on the other hand, with respect to the subject matter thereof. No event under which there are material rights or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.outstanding;
(dx) The Company has no Liability each Contract providing for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or similar payment payable by any Group Company to any person (other than to another Group Company) in excess of RMB4 million;
(xi) each Contract involving payments by the Company or any of its Subsidiaries in excess of RMB30 million in the aggregate under each Contract;
(xii) each Contract relating to any capital expenditure or any disbursement Contract with a contract value exceeding RMB30 million;
(xiii) each share or stock redemption or purchase or other Contract affecting or relating to the share capital of the Company or any of its Subsidiaries, including each Contract with any shareholder of the Company or any of its Subsidiaries which includes anti-dilution rights, voting arrangements or operating covenants;
(xiv) each Contract under which the Company or any of its Subsidiaries has granted any Person any registration rights, or any right of first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the Company; and
(xv) each Contract that contains a put, call or similar type right pursuant to which the Company or any of payments) its Subsidiaries could be required to purchase or noncompetition agreementsell, as applicable, any equity interests of any Person.
Appears in 2 contracts
Sources: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Material Contracts. (a) Section 4.10(a) of Except for this Agreement, the Confidentiality Agreement and the Company Disclosure Schedule sets forth a truePlans, complete and correct list neither the Company nor any Subsidiary of each of the following Contracts to which the Company is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any Contract:
(i) all Contracts that contain restrictions with respect to payment which is a “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of SEC) to the Company;
(ii) which constitutes a contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any Contract that by its terms requires the payment by or on behalf of the Company asset) in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum5,000,000;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) which purports to limit or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, restrict in any material respect, respect (A) the ability of the Company or its Subsidiaries to compete solicit customers or (B) the manner in any which, the line of business in which or with the localities in which, all or any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation portion of the business of the Company and not otherwise disclosed pursuant to its Subsidiaries, including, following consummation of the transactions contemplated by this Section 4.10(a).Agreement, Parent and its Subsidiaries, competes or would compete;
(biv) The Company is in material compliance with which would prohibit or materially delay the terms and provisions of each Material Contract. The Company, and to the Knowledge consummation of the CompanyOffer, the Merger or any of the other party transactions contemplated hereby or otherwise materially impair the ability of the Company to any Material Contract is not in breach perform its obligations hereunder;
(v) which would require the Company or default under any of its terms. The Company has not received notice Subsidiaries to purchase or procure goods and/or services of any breach, default more than $10,000,000 over the remaining term of such contract (“Supplier Long-Term Agreements”) or notice that is an agreement for the sale of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided goods to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding Company’s top ten customers based on revenue for the twelve-month period ending on the Company party thereto in accordance with its respective terms and Balance Sheet Date (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable“Customer Long-Term Agreements”), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.;
Appears in 2 contracts
Sources: Merger Agreement (Precision Castparts Corp), Merger Agreement (Titanium Metals Corp)
Material Contracts. (a) Subsections (i) through (x) of Section 4.10(a3.16(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts types of Contracts, arrangements or understandings to which the any Group Company is a party other than any such Contract that is a Company Employee Plan or by which Company Employee Agreement (such Contracts as are required to be set forth in Section 3.16(a) of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, Disclosure Schedule being the “Material Contracts”):), and none of the Company or any of its Subsidiaries is a party to or bound by any Material Contracts not listed in Section 3.16(a) of the Company Disclosure Schedule:
(i) all Contracts each Contract that contain restrictions with respect would be required to payment of dividends or any other distribution in respect be filed by the Company pursuant to Item 4 of the Membership Units or other Equity Instructions to Exhibits of Form 20-F under the CompanyExchange Act;
(ii) any each Contract that by its terms requires the payment by or on behalf is expected, as of the Company in excess of $100,000 per annum or the delivery date hereof, by the Company to involve consideration of goods or services with a fair market value more than US$500,000, in excess the aggregate, over the remaining term of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumsuch Contract;
(iii) all Contracts involving a relating to any credit, loan (or facility arrangement, guarantee or other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)security arrangement, or investment inIndebtedness (whether or not incurred, assumed, guaranteed or secured by any Person or any agreement relating to the making asset of any such loan, advance or investment Group Company) in excess of $25,000US$500,000, other than any such Contracts solely between any Group Companies;
(iv) all joint venture contracts, strategic cooperation or partnership arrangements, or other agreements involving a sharing of profits, losses, costs or liabilities by any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceGroup Company;
(v) all Contracts relating to the purchase or sale of any Contract that relates to an acquisition shares or divestiture of material assets that contains covenantssecurities of, indemnities or other contractual obligations that could impose a Liability that is material to the Companyequity interests in, any Group Company other than Company Equity Awards;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly that limit, or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect purport to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the any Group Company to compete in any line of business or with any Person person or entity or in any geographic area or during any period of time;
(xixvii) all Contracts involving any directors, executive officers or shareholders of the Company holding more than 5% of the share capital of the Company, required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(iviii) employment agreements (excluding, all Contracts providing for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (change of control payment or similar arrangements) payments to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeany Third Party in excess of US$500,000; and
(xxix) all other Contracts, whether or not made in the ordinary course of business, which are material to any Contract to purchaseGroup Company or the conduct of its business, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate absence of the Company, for an amount in excess of $100,000which would, individually (or in the case of aggregate, have a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding agreement, subject to the Bankruptcy and Equity Exception, and no Group Company is in material compliance with the terms and provisions of each breach or violation of, or default under, any Material Contract. The Company, and (ii) as of the date hereof, no Group Company has received any notice of cancellation of any Material Contract from the other party; (iii) to the Knowledge of the Company, as of the date hereof, no other party to is in material breach or violation of, or default under, any Material Contract is not in breach or Contract; and (iv) as of the date hereof, no Group Company has received any written claim of material default under any such Material Contract and, to the Knowledge of its terms. The Company has not received notice the Company, no fact or event exists that could give rise to any claim of any breach, material default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason filed with the SEC or furnished or made available to believe Parent true and complete copies of all Material Contracts, including any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractamendments thereto.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Material Contracts. (a) Section 4.10(aExcept as set forth on Schedule 3.7(a) of the Company Disclosure Schedule sets forth Schedule, as of the date of this Agreement, no Seller Party is a trueparty to or bound by, complete and correct list of each the Acquired Assets are not subject to, any of the following Contracts (in each case below, to which the Company extent that the same relates primarily to, or is a party or by which otherwise necessary to the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyoperation of the Business, the “Material Contracts”Acquired Assets or the Assumed Liabilities):
(i) all any Contracts that contain restrictions for the purchase or sale of Inventory entered into in the ordinary course of business, which either individually or in conjunction with respect Contracts with the same party, and in connection with the same matter, relate to commitments in excess of $25,000 per annum (including any agreements requiring the payment of dividends or any other distribution in respect of the Membership Units royalties, milestones, minimum purchase payments or other Equity guarantees made by or on behalf of the Company);
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making purchase, lease or similar arrangement of any such loanmachinery, advance equipment, furniture, fixture or investment similar property having a value in excess of $25,000;
(iviii) any Contract that Contracts with (iA) requires the Company to purchase any product director, officer, employee or service Affiliate of any Seller Party involving payments in excess of $100,000 from a third party 5,000 per annum (or the equivalent amount in another currency), or (iiB) requires that to the Company deal exclusively with a third party in connection with Knowledge of the sale Seller Parties, any Affiliate or purchase family member of any product of the foregoing involving payments in excess of $5,000 per annum;
(iv) any agreement with any independent contractor or servicesimilar Contract that (x) involves the payment or receipt of more than $25,000 per annum and (y) is not terminable within thirty (30) days’ notice or less without penalty, liability or premium;
(v) any Contract that relates currently effective collective bargaining or union agreements with respect to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyits employees;
(vi) any Contract under agreement (A) restricting any Seller Party from engaging, participating, or competing with any other Person, in any line of business, market or geographic area, or to make use of any Intellectual Property Rights; (B) granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal or rights of first negotiation to any other Person; (C) otherwise limiting the right of any Seller Party to make, use, sell, offer for sale, import, or distribute any Acquired Technology or services related thereto; or (D) any agreement pursuant to which any Seller Party has granted exclusive rights with respect to the Company has Acquired Technology, including any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted EncumbranceIntellectual Property Rights;
(vii) all Contracts under which any Person (agreement of guarantee, credit support, assumption or endorsement of, any indebtedness for borrowed money of other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000Persons;
(viii) any bonds line of credit, standby financing, revolving credit or Contracts other similar financing arrangement of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personsort that is secured by any Acquired Assets;
(ix) all Contracts involving any agreement relating to any joint ventureventure or partnership arrangement between any Seller Party, partnershipon the one hand, strategic allianceand a third party, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementon the other hand;
(x) all Contracts involving any resolution leases for real property or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datepersonal property;
(xi) any Contract limiting distributorship, customer sales or restraining the Company leasing Contracts under which any Seller Party is currently providing or any successor thereto from engaging receiving products or competing in any manner, in any location or in any business;services and involving more than $25,000 per annum; and
(xii) all Affiliate Contractsany Contract of indemnification or warranty, other than (A) under a Seller Party’s unmodified forms of standard customer/distribution agreements, the forms of which have been made available to the Purchaser or its counsel, or (B) warranties implied by Law;
(xiii) any Company IP Agreements as well as Contract pursuant to which any Contract under which Seller Party has acquired or divested a business or entity, or all or substantially all of the Company is assets of a party providing for the business or entity, whether by way of merger, consolidation, purchase of stock, purchase or sale of assets, license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeotherwise;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of with any Real Property owned, leased or used by the CompanyGovernmental Entity;
(xv) all collective bargaining agreements any confidentiality, secrecy or non-disclosure Contract in effect other than (A) any such Contract entered into with customers or distributors in the ordinary course of business pursuant to a Seller Party’s standard unmodified form (a copy of which has been made available to the Purchaser or its counsel) and (B) any such Contract entered into in connection with a possible disposition by the CompanyCompany of the Business, the terms of which prohibit the applicable Seller Party from disclosing the existence of such Contract, the parties thereto and/or the provisions thereof;
(xvi) any Contract providing that agreement 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 Company indemnify execution of this Agreement or the consummation of the transactions contemplated hereunder, either alone or in combination with any Person in an amount that other event, which trigger or exercise of rights, consequence, result or effect would be material materially impair the ability of the Purchaser to consummate the Company, other than any such agreement entered into in transactions hereunder or operate the Ordinary Course of Business;Business after Closing; and
(xvii) any Contracts related to research or development with any Governmental Authority respect to which the Company is a party;
(xviiiAcquired Technology. The agreements, documents and instruments set forth on Schedule 3.7(a) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who Disclosure Schedule are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance collectively with the terms and provisions of each KNE Contracts referred to herein as “Material ContractContracts”. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as otherwise set forth in Section 4.10(aSchedule 3.7(a) of the Company Disclosure Schedule, true, complete and correct copies of each document or instrument constituting a Material Contract in its complete, current and up-to-date version and true, complete and correct written description of the material terms of any non-written Contract listed on Schedule 3.7(a) of the Company Disclosure Schedule (Material Contracts) have been made available to the Purchaser by virtue of having been posted on the electronic data room.
(b) Except as set forth on Schedule 3.7(b) of the Company Disclosure Schedule, all of the Material Contracts are valid, binding in accordance with their respective terms, in full force and effect, and enforceable against (i) the Seller Party or KNE (as applicable) which are a party thereto, and (ii) to the Knowledge of the Seller Parties and KNE, each third party which is party thereto, in accordance with their respective terms, except, in each case, to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity.
(c) Each Material Contract is (iExcept as set forth on Schedule 3.7(c) valid and binding on of the Company party thereto Disclosure Schedule, neither any Seller Party nor KNE is in accordance with its respective terms and (ii) default under or in full force and effectbreach or violation of any Material Contract. Each Material Contract (or description) sets forth To the entire agreement and understanding (or complete description Knowledge of the material termsSeller Parties, as applicable), between the Company, on one hand, and the no other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of party is in default under any Material Contract or result in a termination thereof breach or would cause or permit the acceleration or other changes violation of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The agreements, documents and instruments set forth on Schedule 3.7(d) of the Company has no Liability for Disclosure Schedule are referred to herein as the deferred purchase price of property“KNE Contracts”. Other than the KNE Contracts, goods or services, whether connected or KNE is not a party to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementContract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spectranetics Corp), Asset Purchase Agreement (Kensey Nash Corp)
Material Contracts. (ai) Section 4.10(a6.1(A)(t)(i) of the Company Allergan Disclosure Schedule sets forth a true, complete and correct list as of the date of this Agreement of each of the following Contracts (other than any Allergan Benefit Plan) to which the Company Allergan or any of its Subsidiaries is a party or by which the Company it is bound (each such Contract required to be so listed, and each of the following types of Contracts (other than any Allergan Benefit Plan) described below to which have not been entirely fulfilled Allergan or performed (such Contractsany of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, collectively, the an “Allergan Material ContractsContract”):
(A) each (i) all acquisition or divestiture Contract (including any Contracts that contain restrictions with respect pursuant to payment of dividends or which any other distribution in respect member of the Membership Units Allergan Group has transferred or other Equity agreed to transfer ownership of the Company;
any Intellectual Property) and (ii) license (including any Contract that by its terms in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a maximum potential value (or which otherwise requires the payment by receipt or on behalf making of the Company payments) in excess of $100,000 per annum 100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations), (y) involves the delivery by issuance of any Equity Securities of Allergan or any of its Subsidiaries to a Third Party following the Company date of goods this Agreement or services (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that is material to Allergan and its Subsidiaries, taken as a fair market whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum100 million;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivC) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution limits or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect purports to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability freedom of the Company Allergan or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during that would so limit or purport to limit, in any period material respect, the freedom of timeAbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions that restrict or purport to restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(xixD) all any Contract relating to third party indebtedness for borrowed money in excess of $100 million (iwhether incurred, assumed, guaranteed or secured by any asset) employment agreements of Allergan or any of its Subsidiaries;
(excludingE) any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, for certaintyprofit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other similar agreement, which is material to the Allergan Group, taken as a whole;
(G) any employees who are employed at willContracts or other transactions with any (A) and executive officer or director of Allergan, or (iiB) Contracts with independent contractors affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or consultants “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or beneficial owner;
(H) any Contract involving the settlement of any Action or threatened Action (or series of related Actions) (A) which (x) will involve payments by Allergan or any of its Subsidiaries after the date hereof, or involved such payments, in excess of $100 million or (y) will impose, or imposed, materially burdensome monitoring or reporting obligations by Allergan or any of its Subsidiaries outside the ordinary course of business or material restrictions on Allergan or any Subsidiary of Allergan (or, following the Completion, on AbbVie or any Subsidiary of AbbVie) or (B) which impose material restrictions on the use of any material Intellectual Property other than, in the case of this clause (B), the granting of non-exclusive licenses or sublicenses or the granting of exclusive licenses in connection with the settlement of ANDA-related litigation in the ordinary course of business;
(I) any stockholders, investors rights, registration rights or similar arrangements) agreements or arrangements with respect to which the Company is a party and which are not cancellable without material penalty Equity Securities of Allergan or without more than ninety (90) days’ noticeany of its Subsidiaries; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxiJ) any other Contract that is material required to be filed by Allergan pursuant to Item 601(b)(10) of Regulation S-K.
(ii) All of the Allergan Material Contracts are, subject to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
Equitable Exceptions, (b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (iA) valid and binding on obligations of Allergan or a Subsidiary of Allergan (as the Company party thereto in accordance with its respective terms case may be) and, to the knowledge of Allergan, each of the other parties thereto, and (iiB) in full force and effect. Each Material Contract effect and enforceable in accordance with their respective terms against Allergan or its Subsidiaries (or descriptionas the case may be) sets forth and, to the entire agreement and understanding (or complete description knowledge of the material termsAllergan, as applicable), between the Company, on one hand, and each of the other parties thereto, on in each case of (A) and (B), except for such Allergan Material Contracts that are terminated after the date of this Agreement in accordance with their respective terms, other than as a result of a default or breach by Allergan or any of its Subsidiaries of any of the provisions thereof, and except where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would not reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. To the knowledge of Allergan, as of the date hereof, no Person is seeking to terminate or challenging the validity or enforceability of any Allergan Material Contract, except such terminations or challenges which have not had and would not reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. Neither Allergan nor any of its Subsidiaries, nor, as of the date hereof, to the knowledge of Allergan, any of the other handparties thereto has violated any provision of, or committed or failed to perform any act which (with respect to the subject matter thereof. No event or circumstance has occurred thatwithout notice, with notice or lapse of time or both, ) would constitute an event of a default under any provision of, and as of the date hereof neither Allergan nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Allergan Material Contract, except for those violations and defaults (or potential defaults) which have not had and would not reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. Allergan has made available to AbbVie true and complete copies of each Allergan Material Contract or result as in a termination thereof or would cause or permit effect as of the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractdate hereof.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Transaction Agreement (Allergan PLC), Transaction Agreement (AbbVie Inc.)
Material Contracts. (a) Section 4.10(a4.12(a) of the Company Disclosure Schedule sets forth a true, complete and correct accurate list of each of the following binding Contracts to which the any Company Entity is a party or by falling within the following categories and existing as of the date hereof, and in each case excluding any Contracts to which the only Company is bound and which have not been entirely fulfilled or performed Entities are party (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions any Contract (other than purchase orders or statements of work entered into in the Ordinary Course) with respect a Key Supplier or a Key Customer, providing for, or pursuant to payment which would reasonably be expected to result in, either (A) annual payments by the Company Entities of dividends $5 million or any other distribution in respect more, (B) annual revenue to the Company Entities of $5 million or more or (C) revenue to the Company Entities of $10 million or more over the term of the Membership Units or other Equity of the CompanyContract;
(ii) any Contract that by its terms requires (other than purchase orders or statements of work entered into in the payment by Ordinary Course) not with a Key Supplier or on behalf a Key Customer, for the purchase, sale, lease or other disposition of the Company in excess of $100,000 per annum real or the delivery personal property, services, equipment or other tangible assets or materials providing for, or pursuant to which would reasonably be expected to result in, either (A) annual payments by the Company of goods or services with a fair market value in excess Entities of $100,000 per annum 10 million or provides for more, (B) annual revenue to the Company to receive payments in excess Entities of $100,000 per annum10 million or more or (C) revenue to the Company Entities of $10 million or more over the term of the Contract;
(iii) all Contracts involving a loan any Contract establishing (A) any Material Joint Venture or (B) any other than accounts receivable owing from trade debtors in the Ordinary Course of Business) joint venture, strategic alliance or advance teaming arrangement that is or would reasonably be expected to (other than travel and entertainment advances be material to the employees of the Company extended in the Ordinary Course of Business)Entities, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000taken as a whole;
(iv) any Government Contract that providing for either (iA) requires annual payments by the Company to purchase any product or service in excess Entities of $100,000 from a third party 10 million or more or (iiB) requires that annual revenue to the Company deal exclusively with a third party in connection with the sale Entities of $10 million or purchase of any product or servicemore;
(v) any Contract that relates relating to an the acquisition or divestiture disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which any Company Entity has material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyoutstanding obligations;
(vi) the Credit Agreements and any other Contract under to which the any Company has Entity is obligor or guarantor relating to Indebtedness, except any such Contract with an aggregate outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceprincipal amount not exceeding $5 million;
(vii) all Contracts any Contract under which any Company Entity (A) has made or agreed to make any loan, advance or assignment of payment to, or (B) made any capital contribution to, or other investment in, any Person (other than the Company) has directly any Company Entity), or indirectly guaranteed Indebtedness or agreed to guarantee any of the Company in excess foregoing, except any such Contract with an aggregate amount of such an obligation not exceeding $50,00010 million;
(viii) any bonds Contract that obligates any Company Entity to make any capital expenditure or Contracts investment in excess of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person$10 million;
(ix) all Contracts involving any joint ventureContract granting any Person (other than any other Company Entity) a Lien, partnershipin each case, strategic allianceother than a Permitted Lien, shareholders’ agreement, co-marketing, co-promotion, joint development on material assets or similar arrangementproperties of any Company Entity;
(x) all Contracts involving the Company Name License Agreements and any resolution or settlement other Contract that is material to business of any actual Company Entity and pursuant to which any Company Entity: (A) obtains a license to, a covenant not to be sued under, or threatened Action under which other right to use any Intellectual Property Right of a third party (other than (1) licenses for off-the-shelf software generally available to the public on non-discriminatory pricing terms, (2) non-exclusive licenses of Intellectual Property Rights that are not material to the business of any Company has Entity and that are incidental to the transaction contemplated by the Contracts containing such licenses, where the purpose of such Contracts is primarily something other than the license of such Intellectual Property Rights, or (3) licenses for Open Source software) or (B) grants a license to, a covenant not to be sued under, or other right to use any obligation or Liability Company-Owned Intellectual Property Right (other than non-exclusive licenses granted in the Ordinary Course that will continue after are not material to the Closing Datebusiness of any Company Entity and that are incidental to the transaction contemplated by the Contracts containing such licenses, where the purpose of such Contracts is primarily something other than the license of such Company Intellectual Property Rights);
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessLabor Agreement;
(xii) all Affiliate Contractsany Contract with a Key Employee providing for compensation (including deferred compensation);
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for indemnification obligations of any Company Entity not entered into in the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeOrdinary Course;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management providing for “most favored customer” or operation similar terms that limit any Company Entity’s right to set pricing independently of any Real Property ownedother Contract, leased in a manner that is or used by would reasonably be expected to be material to the CompanyCompany Entities, taken as a whole;
(xv) all collective bargaining agreements entered into by any Contract granting a third Person any right of first refusal, right of first offer, right of first negotiation or similar right in a manner that is or would reasonably be expected to be material to the CompanyCompany Entities, taken as a whole;
(xvi) any Contract providing that containing covenants expressly limiting in any material respect the freedom of any Company Entity to compete with any Person or operate in any jurisdiction, or containing any exclusivity, standstill or non-solicitation (other than relating to employees) obligation binding on any of the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of BusinessEntities;
(xvii) any Contracts with Contract that prohibits or restricts in any Governmental Authority material respect the right of any Company Entity to which the make, sell, supply, market or distribute any products or services sold or provided by any Company is a partyEntity;
(xviii) any Contracts that limit, in Contract with a Seller or any material respect, the ability of its Affiliates (other than the Company to compete in any line of business Entities, Material Joint Ventures or with any Person or in any geographic area or during any period of timeOther Joint Ventures) (“Intercompany Agreements”);
(xix) all (i) employment agreements (excluding, any Contract that provides for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) potential revenue to which the Company is a party and which are not cancellable without material penalty Entities of $10 million or without more than ninety (90) days’ notice; andover the term of the Contract;
(xx) any Contract to purchase, lease involving a resolution or otherwise acquire settlement of any Action where the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (paid in the case of a lease, per annum) resolution or settlement exceeds $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)20 million; andor
(xxi) any other Contract Real Property Lease that is material to a lease, sublease or other occupancy agreement providing for the operation lease or sublease by a Company Entity of the business real property at an annual base rent in excess of the Company and not otherwise disclosed pursuant to this Section 4.10(a)$5 million.
(b) The Company is in material compliance with the terms Sellers have made available to Buyer a true, correct and provisions complete copy (including all amendments or modifications thereto) of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) a legal, valid and binding on the agreement of one or more Company party thereto in accordance with its respective terms Entities, and (ii) is in full force and effect, and is enforceable against the applicable Company Entity party thereto, and, to the knowledge of Sellers, each other party thereto, in accordance with the terms thereof (subject to the Remedies Exception). Each No Company Entity or, to the knowledge of Sellers, any other party is, or is alleged to be, in material default or breach under the terms of any such Material Contract (Contract, except for any such defaults or description) sets forth breaches which would not reasonably be expected to be, individually or in the entire agreement and understanding (or complete description aggregate, material to the Company Entities, taken as a whole. Without limitation of the material termsforegoing, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance no Credit Agreement Default has occurred that, with notice or lapse of time or both, that would constitute an event of default under any Material Contract or reasonably be expected to result in a termination thereof failure of the condition set forth in Section 8.01(b)(iv); provided that, solely for purposes of this Section 4.12(b), the following phrase shall be disregarded in the definition of Credit Agreement Default: “of which Sellers have, as of such date of determination, (i) Actual Knowledge of Sellers or would cause or permit (ii) received written notice from the acceleration or other changes of any right or obligation or Administrative Agent (as defined in the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder applicable Credit Agreement referenced in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractthis clause (a)).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.”
Appears in 2 contracts
Sources: Equity Purchase Agreement (Cameco Corp), Equity Purchase Agreement (Brookfield Business Corp)
Material Contracts. (ai) Section 4.10(aExcept as set forth in Schedule 5.1(j)(i) of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each as of the following Contracts date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(A) any lease of real or personal property providing for annual rentals of $15,000,000 or more;
(B) any agreement or agreements involving more than $5,000,000 individually or $10,000,000 in the aggregate to acquire (I) a License, or an interest in an entity holding a License, that upon acquisition by the Company would become a Communications License or (II) any interest in an entity that holds a License that upon acquisition of such entity by the Company would become a Foreign License;
(C) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns any interest valued at more than $10,000,000 without regard to percentage voting or economic interest (unless pursuant to such agreement or arrangement the Company and its Subsidiaries do not have a future funding obligation reasonably likely to require funding of more than $15,000,000 in the aggregate);
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000,000;
(E) any Contract required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(F) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (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 or (II) could 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 Affiliates;
(G) any Contract (other than (I) a Contract with respect to compensation or similar arrangements not involving a director of the Company or one of the Section 16 Officers and (II) any Contract entered into in the ordinary course of business) between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning, as of the date hereof, five percent or more of the outstanding Shares;
(H) any Contract that contains a put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $25,000,000; and
(I) any other Contract or group of Contracts with a single counterparty that, if terminated or subject to a default by any party thereto, would, individually or by which in the Company is bound aggregate, reasonably be expected to result in a Material Adverse Effect (the Contracts described in clauses (A) – (I), together with all exhibits and which have not been entirely fulfilled or performed (schedules to such Contracts, collectively, being the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;).
(ii) any A true and complete copy of each Material Contract that by its terms requires the payment by has previously been delivered or on behalf made available to Parent (subject to applicable confidentiality restrictions) and each such Contract is a valid and binding agreement of the Company in excess or one of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)its Subsidiaries, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companymay be, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth , and neither the entire agreement and understanding (or complete description Company nor any of its Subsidiaries nor, to the knowledge of the material terms, as applicable), between officers of the Company, on one hand, and any other party thereto is in material default or breach under the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes terms of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 2 contracts
Sources: Merger Agreement (SBC Communications Inc), Merger Agreement (At&t Corp)
Material Contracts. (a) Section 4.10(a) 3.17 of the Company Seller Disclosure Schedule sets forth as of the date of this Agreement a true, true and complete and correct list of each of the following Contracts (other than purchase orders and invoices, Benefit Plans and Compensation Agreements) to which any of the Company Transferred Entities is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment involving payments by the Transferred Entities of dividends more than $250,000 per year or any other distribution in respect $2,000,000 over the term of the Membership Units Contract, or other Equity having a term of the Companymore than four (4) years and not terminable within 180 days;
(ii) any Contract that by its terms requires Contracts requiring the payment by Transferred Entities to provide more than $250,000 of services per year or on behalf $2,000,000 of services over the term of the Company Contract, or that are anticipated to generate, individually, revenue for any Transferred Entity of more than $1,000,000 in excess of $100,000 per annum 2022 or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum2023;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees any Contract containing any future capital expenditure obligations of the Company extended in the Ordinary Course of Business), Transferred Entities (or investment in, any Person or any agreement otherwise relating to the making of any such loan, advance or investment Business) in excess of $25,000250,000;
(iv) Contracts evidencing Indebtedness for borrowed money of any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively Transferred Entity with a third party in connection with the sale or purchase of any product or serviceprincipal amount greater than $1,000,000;
(v) Contracts requiring any Contract that relates Transferred Entity to an acquisition pay, perform, discharge or divestiture otherwise guarantee any Indebtedness of material assets that contains covenants, indemnities or any other contractual obligations that could impose Person (other than a Liability that is material to the CompanyTransferred Entity) with a principal amount greater than $1,000,000;
(vi) any Contract under which the Company has joint venture, partnership or other similar agreement involving co-investment between any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than Transferred Entity and a Permitted Encumbrancethird party;
(vii) all Contracts under which for the sale, transfer or other disposition of any Person (assets of any Transferred Entity involving payments of more than $1,000,000, other than sales of inventory in the Company) has directly or indirectly guaranteed Indebtedness ordinary course of the Company in excess of $50,000business consistent with past practice;
(viii) any bonds Contract relating to the acquisition or Contracts disposition of Guarantee in any business (whether by merger, sale of stock, sale of assets or otherwise) under which the Company acts as Transferred Entities have a surety or guarantor continuing obligation with respect to any an “earn out,” contingent purchase price, or similar contingent payment obligation (fixed that is reasonably expected to be $250,000 or contingent) of another Person;greater in amount; and
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount containing covenants that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, restrict or limit in any material respect, respect the ability of the Company Transferred Entities after the Closing to engage in the Business or compete in any line of business or with respect to the Business with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)area.
(b) The Company is in material compliance with the terms Sellers have made available to Purchaser true, correct and provisions complete copies of each Material ContractContract and all amendments related thereto. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) a legal, valid and binding on obligation of the Company party thereto in accordance with its respective terms applicable Transferred Entities, and, to the knowledge of Sellers, of each counterparty thereto, and (ii) is in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretono Transferred Entity, on the other handor, with respect to the subject matter thereof. No knowledge of Sellers, other party thereto is in breach of, or in default under, any such Material Contract, and no event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event of such a breach or default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for of the deferred purchase price of propertyTransferred Entities, goods or servicesor, whether connected or not to the acquisition knowledge of Sellers, any business (earn-out other party thereto, except for such failures to be valid, binding or other similar type of payments) in full force and effect and such breaches, defaults or noncompetition agreementevents that have not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Ambipar Emergency Response), Purchase and Sale Agreement (Ambipar Emergency Response)
Material Contracts. (a) Section 4.10(aExcept as set forth on Schedule 4.6(a) of the Company Disclosure Schedule sets forth a true, complete (together with all Real Property Leases and correct list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyAffiliate Agreements, the “Material Contracts”):) and other than this Agreement, as of the date of this Agreement, no Group Company is a party to or bound by any:
(i) all Contracts that contain restrictions with respect to payment Contract for the employment of dividends or any other distribution in respect of the Membership Units officer, individual employee or other Equity person on a full-time, part-time, consulting or other basis, or employment agreement, severance agreement or other agreement that require payments upon a “change in control” or similar payments covering any employee or director or former employee or director of the any Group Company;
(ii) commission and/or sales Contract with (A) any current employee, individual consultant, contractor or salesperson and pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010, (B) any partner of any Group Company or any distributor of any Company Products providing for the payment of any commissions or other sales compensation to any employees or agents of such partner or distributor and pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010, or (C) under which a firm or other organization provides commission or sales-based services to any Group Company pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010;
(iii) Contract that obligates any Group Company to provide indemnification or a guarantee (other than intercompany guarantees) that could result in payments in excess of $100,000;
(iv) Contract relating to Indebtedness (other than guarantees by way of endorsement or negotiable instruments in the ordinary course of business);
(v) Contract whereby any Group Company has guaranteed or otherwise agreed to cause, insure or become liable or indemnify for, or pledged any of its terms requires assets to secure, the performance or payment of, any obligation or other liability of any Person;
(vi) Contract relating to capital expenditures and involving future payments by or on behalf of the any Group Company in excess of $100,000 per annum in any individual case or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors 200,000 in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceaggregate;
(vii) all Contracts Contract under which any Person Group Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of aggregate annual rental payments do not exceed $50,000100,000;
(viii) Contract under which any bonds Group Company is lessor of or Contracts of Guarantee in permits any third party to hold or operate any tangible property (other than real property), owned or controlled by any Group Company, except for any lease or agreement under which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personaggregate annual rental payments do not exceed $100,000;
(ix) all Contracts involving Contract prohibiting any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Group Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from freely engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respectbusiness, or containing covenants that limit or purport to limit the ability of the any Group Company to (A) compete in any line of business or with any Person or in any geographic area area, (B) sell, supply, provide or during distribute any period service or product, (C) hire or solicit Persons for employment, (D) incur or guarantee any Indebtedness or to g▇▇▇▇ ▇ ▇▇▇▇ on the assets of timeany Group Company, or (E) use or enforce any Group Company IP Rights, including, in each case, any nondisclosure, non-competition, settlement, coexistence, standstill or confidentiality agreements;
(xixx) all (i) employment agreements (excluding, for certainty, collective bargaining agreement or other Contract with any employees who are employed at will) and (ii) collective bargaining representative or other Contracts with independent contractors or consultants (a labor union, labor organization or similar arrangementsbody;
(xi) Contract pursuant to which any Group Company (a) grants a third Person a license to use any Group Company IP Rights (other than standard form software as a service agreements in a form substantially similar to those that the Company is has made available to Parent prior to the date hereof) or (b) receives a license to use any benefit from any Intellectual Property of any third party and which are not cancellable without material penalty (other than licenses for commercially available non-custom software or without more data services available on standard terms or involving annual payments to or from the Group Companies less than ninety (90) days’ notice; and$100,000);
(xxxii) settlement or similar Contract pursuant to which any Group Company is obligated to pay consideration in excess of $150,000 after the date hereof;
(xiii) Contract that relates to purchaseany prior (within the past five years) or future disposition or acquisition of properties, lease of assets or of any interest in any business enterprise valued in excess of $100,000 by any Group Company, or any merger or business combination with respect to any Group Company;
(xiv) powers of attorney (other than powers of attorney given in the ordinary course of business);
(xv) Contract (A) providing for any Group Company to be the exclusive provider of any product or service to any Person or that otherwise acquire involves the granting by any Person to any Group Company of exclusive rights of any kind, (B) providing for any Person to be the exclusive provider of any product or services to any Group Company or that otherwise involves the granting by any Group Company to any Person of exclusive rights, (C) granting to any Person a right to own, use of first refusal or lease right of first offer on the sale of any property or assets, including such Contracts entered into by an Affiliate part of the business of any Group Company, (D) containing a provision of the type commonly referred to as “most favored nation” provision for the benefit of a Person other than any Group Company, or (E) pursuant to which any Group Company has agreed to provide services for a fixed price or maximum fee, or pursuant to any cap or other provision that provides for payment other than on an unrestricted “time and materials” basis and pursuant to which any Group Company expects to accrue revenue in excess of $100,000 during any twelve (12) month period after the date hereof;
(xvi) Contract that obligates any Group Company to pay an amount in excess of $200,000 during the twelve (12) month period after the date hereof;
(xvii) dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant Contract involving annual payments to or from the Group Companies in excess of $100,000;
(xviii) joint venture, individually partnership, strategic alliance, funding or other Contract involving the sharing of profits, losses, costs or liabilities with any Person or any development, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service involving annual payments to or from the Group Companies in excess of $100,000;
(xix) Contract pursuant to which any Group Company has granted or may be obligated to grant in the future, to any Person, a source code license or option or other right to use or acquire source code, including any agreements that provide for source code escrow arrangements, that is owned by any Group Company and that is material to the Group Companies taken as a whole;
(xx) sales representative, original equipment manufacturer, value added re-seller, remarketer or other Contract for distribution of products or services of any of the Group Companies, or the products or services of any other Person, in each case pursuant to which the Group Companies paid the counterparty thereto in excess of a lease, per annum) or $150,000 100,000 in the aggregate eleven month period ended November 30, 2010;
(xxi) Contract with any customer or third party to provide support or maintenance, including for any third-party product, service or platform involving annual payments to or from the Group Companies in the case excess of a lease, $100,000;
(xxii) Contract providing for the entire term use, disclosure or sale of any Personal Information other than customer agreements based on the lease, not including Company’s standard form;
(xxiii) Contract with any option termGovernmental Entity (a “Government Contract”); and
(xxixxiv) Contract (including any other Contract end-user licenses) with any customer or client of the Group Companies that is material provides for the payment to the operation Group Companies in excess of $200,000 in the business of twelve (12) month period following the Company and not otherwise disclosed pursuant to this Section 4.10(a)date hereof.
(b) The Company Except as set forth on Schedule 4.6(b), each Material Contract is in material compliance full force and effect and is valid and binding on the applicable Group Company and enforceable in accordance with the its terms and provisions of each Material Contract. The Companyagainst such Group Company and, and to the Knowledge of the Company, the each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Except as set forth on Schedule 4.6(b), neither any Material Contract is not in breach or default under Group Company, nor, to the Company’s Knowledge, any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, is currently in breach in any respect of any of the terms and conditions of any Material Contract except where any such breach has not been or would not be, individually or in the aggregate, material. Except as set forth on Schedule 4.6(b), no Group Company has received any notice of the other hand, with respect intention of any party to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under terminate any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of to exercise any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or option not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementrenew thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSchedule 3.6(a) of the Company Disclosure Schedule sets forth a true, correct and complete and correct list of each of the following Contracts contracts of each Group Company as of the date hereof, to which the Company is a party extent any such contract or by which agreement remains in effect as of the Company is bound and which have not been entirely fulfilled or performed date hereof (such Contractscontracts required to be listed or described on Schedule 3.6(a), collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect agreement or indenture relating to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyFunded Indebtedness;
(ii) contract under which any Contract that by its terms requires the payment by Group Company has made advances or on behalf of the Company loans to another Person in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (125,000, other than accounts receivable owing from trade debtors in the Ordinary Course of Business) to inter-company loans or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), any employee or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party director in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenantstravel, indemnities entertainment and related business expenses or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, cocustomary out-marketing, coof-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into pocket expenses in the Ordinary Course of Business;
(xviiiii) lease or agreement under which any Contracts with Group Company is lessee of or holds or operates any Governmental Authority to tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the Company is a partyaggregate annual rental payments do not exceed $125,000;
(xviiiiv) lease or agreement under which any Contracts Group Company is lessor of or permits any third party to hold or operate any tangible property (other than real property), owned or controlled by the Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $125,000;
(v) operating agreement, partnership agreement, joint venture agreement or similar arrangement involving the sharing of revenue, profits, losses, costs or liabilities;
(vi) contract containing non-competition or non-solicitation covenants or otherwise containing covenants that limit, purport to materially restrict any Group Company’s business activities or prohibiting any Group Company from (A) engaging in any material respect, the ability of the Company to compete in any line of business business, (B) providing for any material exclusivity, rights of first refusal, rights of first negotiation preferred treatment or with similar requirement or (C) including any Person or in any geographic area or during any period of timemost favored pricing provisions;
(xixvii) all collective bargaining agreement;
(iviii) contract for the employment agreements or engagement of any individual employee on a substantially full-time basis or consulting basis with an annual base compensation in excess of $250,000 (excludingexcluding at-will employees);
(ix) contract that relates to the acquisition or disposition of, for certaintyor investment in, any employees who are employed at willbusiness, division or Person (whether by merger, sale of capital stock, sale of assets or otherwise), including investments in joint ventures and minority equity investments, in each case within the past three (3) and (ii) Contracts with independent contractors years or consultants (or similar arrangements) pursuant to which any Group Company has any material outstanding rights or obligations;
(x) contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the Company aggregate;
(xi) other than purchase orders entered into in the Ordinary Course of Business, any contracts with any supplier required to be listed on Schedule 3.22;
(xii) contract which is a settlement, conciliation or litigation “standstill” contract (A) pursuant to which any Group Company will have material outstanding obligations after the Closing or (B) with respect to which material conditions precedent to the settlement have not been satisfied;
(xiii) contracts pursuant to which any Group Company grants to a third party, or a third party and which are grants to any Group Company, a license to any Intellectual Property Rights, in each case involving consideration in excess of one hundred thousand dollars ($100,000) per annum, other than (A) contracts for the license of commercially available, off the shelf software or (B) contracts for the non-exclusive license of Intellectual Property Rights in the Ordinary Course of Business;
(xiv) each contract that is a securityholder agreement, shareholder agreement, registration rights agreement or any arrangement relating to or affecting the ownership of the equity interests of a Group Company; or
(xv) other agreement that is not cancellable without material penalty or without more terminable on less than ninety (90) 90 days’ notice; and
(xx) any Contract to purchasenotice and requires the payment by, lease or otherwise acquire to, the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate Group Companies after the date hereof of the Company, for an amount in excess of $100,000, individually (in the case of a lease, 250,000 per annum, excluding Real Property Leases and excluding agreements set forth on Schedule 3.10(a) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a3.23(a).
(b) The Company has made available to Parent and Merger Sub a true and correct copy of all written Material Contracts, together with all amendments, modifications or supplements thereto. Except as set forth on Schedule 3.6(b), each Material Contract is in material compliance full force and effect and is legal, valid and binding on the applicable Group Company party thereto and enforceable in accordance with the its terms and provisions of each Material Contract. The Companyagainst such Group Company and, and to the Knowledge knowledge of the Company, each other party thereto (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity); provided that for purposes of representations made as of the Closing Date, this representation shall not apply to Material Contracts, if any, which have been terminated in accordance with their terms after the date hereof and prior to the Closing. Except as set forth on Schedule 3.6(b), no Group Company or, to the Company’s knowledge, other party thereto, is in breach of its material obligations under any Material Contract or has given to any other party notice alleging that such a material breach or material default has occurred. No party to any Material Contract is not in breach or default under has exercised any of its terms. The Company termination rights with respect thereto, and no party has not received given written notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, dispute with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Fat Brands, Inc)
Material Contracts. Except for (i) this Agreement and the Transaction Agreements, (ii) those agreements filed as an exhibit to the SEC Reports or (iii) which individually or in the aggregate are not material to the Company's or any of the Subsidiaries' businesses, as of the date of this Agreement, neither the Company nor any of the Subsidiaries are a party to or bound by:
(a) Section 4.10(aany trust indenture, mortgage, promissory note, loan agreement or other contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement (other than any such arrangement entered into for bona fide hedging purposes) or any leasing transaction of the type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financing Accounting Standards Board;
(b) any contract for capital expenditures in excess of two hundred fifty thousand dollars ($250,000) in the aggregate;
(c) any contract limiting the freedom of the Company Disclosure Schedule sets forth a trueto engage in any line of business, complete and correct list to acquire any material product or asset from any other Person outside the ordinary course of each business, to sell any material product or asset outside the ordinary course of business to, perform any material service outside the following Contracts ordinary course of business, or to compete with any other Person;
(d) any contract pursuant to which the Company is a party lessor of real property or by which of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal tangible property involving in the case of any such personal property contract more than one hundred thousand dollars ($100,000) over the life of the contract;
(e) any material contract with any Person with whom the Company is bound and does not deal at arm's length;
(f) any contract which have not been entirely fulfilled provides for the indemnification of any officer, director, employee or performed agent;
(such Contracts, collectively, the “Material Contracts”):g) any guarantee of indebtedness of any other Person;
(h) any contract with or commitment to any labor union;
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining contract between the Company or any successor thereto from engaging of the Subsidiaries and any Governmental Authority, where the amount of fees involved, or competing in any mannerthe amount of services to be provided, in any location or in any businessexceeds five hundred thousand dollars ($500,000);
(xii) all Affiliate Contracts;
(xiiij) any Company IP Agreements as well as any Contract under which contract or commitment for or relating to the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation employment of any Real Property ownedofficer, leased employee or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability consultant of the Company to compete in or any line other type of business contract or understanding with any Person officer, employee or in any geographic area or during any period consultant of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants the Company that is not immediately terminable (or similar arrangementsterminable within thirty (30) to which days or less in the case of consultants) by the Company is a party and which are not cancellable without material penalty cost or without more than ninety (90) days’ noticeother liability; and
(xxk) any Contract joint venture or partnership contract or other agreement which has involved, or is reasonably expected to purchaseinvolve, lease a sharing of profits, expenses or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) losses with any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)party.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (National Technical Systems Inc /Ca/)
Material Contracts. (a) Section 4.10(a) 2.11 of the Company Seller Disclosure Schedule sets forth a true, complete and correct list of each of the following Contracts to which (x) the Company is a party or by which the Company it is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyy) to the extent relating to the business of the Company, the Seller or one of its Affiliates (other than the Company) is a party (each, a “Material ContractsContract”) (other than Benefit Plans):
(i) all Contracts each Contract that contain restrictions with respect contains a put, call, right of first refusal, right of first offer or similar right pursuant to payment of dividends which the Company could be required to, directly or indirectly, purchase or sell, as applicable, any other distribution in respect of the Membership Units securities, capital stock or other Equity interests, assets (including cryptocurrency) or business of the Companyany Person;
(ii) any each Contract containing covenants that by its terms requires restrict the payment by or on behalf right of the Company to: (A) engage in excess any business activity, (B) engage in any line of $100,000 per annum business or compete with any Person, or (C) conduct any activity in any geographic area;
(iii) each Contract granting any third party the delivery by exclusive right to develop, market, sell or distribute the Company’s products or services;
(iv) all Contracts between or among the Company on the one hand and the Seller or any of the Debtors or any of the current employees on the other hand;
(v) all Contracts with a customer or vendor of the Company involving payments or expected payments to the Company of goods more than $100,000 in either of the fiscal years ended December 31, 2022, or services with ending December 31, 2023;
(vi) any Contract relating to the disposition or acquisition of any business, equity interest, entity or, except for inventory and other tangible property acquired in the ordinary course of business, assets having a fair market value in excess of $100,000 per annum 250,000 or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness remaining material obligation with respect to an “earn-out,” contingent purchase price or evidencing an Encumbrance similar contingent payment obligation;
(vii) each Contract creating indebtedness for borrowed money in excess of $200,000;
(viii) each Contract creating or granting a material Lien on any property or asset assets of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than purchase money security interests in connection with the Company) has directly or indirectly guaranteed Indebtedness acquisition of equipment in the Company in excess ordinary course of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor business consistent with respect to any obligation (fixed or contingent) of another Personpast practice;
(ix) all Contracts involving each (A) Contract pursuant to which the Company or the Seller or any joint ventureof the other Debtors is granted any license, partnershipcovenant not to sue or other rights to use any Intellectual Property or data used or held for use in, strategic allianceor otherwise necessary for, shareholders’ agreementthe business of the Company, coother than non-marketingexclusive licenses to off-the-shelf, cocommercially available, non-promotioncustomized Software in object code form, joint development and (B) Outbound Intellectual Property License, other than non-exclusive licenses granted in the ordinary course of business consistent with past practice to customers or similar arrangementend-users for their use of the Company’s products and services;
(x) all Contracts each Contract involving any resolution or settlement of any actual or threatened Action under which that is material to the Company has business of the Company, or that imposes material injunctive or other non-monetary obligations on the Company, including any obligation restrictions on the Company’s use, licensing or Liability that will continue after the Closing Dateregistration of any material Intellectual Property, including co-existence agreements;
(xi) each Contract pursuant to which any Contract limiting material technology or restraining material Intellectual Property has been developed for, with or on behalf of the Company or any successor thereto from engaging or competing in any mannerCompany, in any location or in any businessother than agreements with employees of the Company;
(xii) all Affiliate Contracts;each material service Contract related to the operation of the DCM, the DCO and the SEF including (A) agreements with vendors for information technology services and (B) agreements with respect to custody of customer or member property; and
(xiii) any Company IP Agreements agreements with the NFA, in its capacity as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property includingregulatory service provider, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, other Self-Regulatory Organization in any material respect, the ability of the Company to compete in any line of business or connection with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company DCM, DCO and not otherwise disclosed pursuant to this Section 4.10(a)SEF.
(b) The Company is Except as would not, individually or in material compliance with the terms and provisions of aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract. The CompanyContract is valid, binding and enforceable against the Company and, to the Knowledge of the Company, the each other party to any Material Contract thereto, and is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, preferential transfer, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the “Equitable Exception”). Each There is no breach or violation of, or default under, any such Material Contract (by the Company or description) sets forth the entire agreement and understanding (or complete description of the material terms, Seller as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would constitute an event of a default under any Material Contract or result in a termination thereof or would cause or permit thereunder by the acceleration or other changes of any right or obligation Company or the loss of any benefit thereunder. The Company has no reason Seller as applicable, in each case except as would not, individually or in the aggregate, reasonably be expected to believe any party to any have a Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAdverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Interest Purchase Agreement (Miami International Holdings, Inc.)
Material Contracts. (a) Section 4.10(aSchedule 3.09(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of lists each of the following Contracts to which of the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed its Subsidiaries (such Contracts, collectivelytogether with all Contracts concerning the occupancy, the management or operation of any Real Property listed or otherwise disclosed on Schedule 3.10(b) and all Company IP Agreements set forth on Schedule 3.12(b), being “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment Each Contract of dividends the Company or any other distribution of its Subsidiaries providing for payments to the Company or any of its Subsidiaries or payments from the Company or any of its Subsidiaries of an aggregate amount in respect excess of $300,000 during the Membership Units or other Equity fiscal year ending as of the CompanyDecember 31, 2021;
(ii) any Each Contract that by its terms requires the payment by or on behalf of the Company and its Subsidiaries to which any Material Customer or Material Supplier is a party;
(iii) All Contracts that require the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iv) All Contracts that provide for the indemnification by the Company or any of its Subsidiaries of any Person (excluding, for the avoidance of doubt, the Company Charter Documents) or the assumption of any Tax, environmental or other Liability of any Person other than indemnification obligations provided entered into in the Company’s ordinary course of business;
(v) All Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(vi) All employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party providing for annual compensation in excess of $100,000 per annum and which are not cancellable without material penalty or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
without more than sixty (iii60) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrancedays’ notice;
(vii) Except for Contracts relating to trade payables, all Contracts under which any Person relating to indebtedness (other than the Companyincluding, without limitation, guarantees) has directly or indirectly guaranteed Indebtedness of the Company in excess or any of $50,000its Subsidiaries;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any All Contracts with any Governmental Authority to which the Company or any of its Subsidiaries is a partyparty (“Government Contracts”);
(xviiiix) any All Contracts that limit, in any material respect, limit or purport to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xixx) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Any Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any of its Subsidiaries is a party and that provide for any joint venture, partnership or similar co-venture arrangement (other than supplier agreements which are not cancellable without material penalty provide for the sharing of development cost);
(xi) All collective bargaining agreements or without more than ninety (90) days’ noticeContracts with any Union to which the Company or any of its Subsidiaries is a party; and
(xxxii) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any Any other Contract that is material to the operation Company or any of the business of the Company its Subsidiaries and not otherwise previously disclosed pursuant to this Section 4.10(a)3.09.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto and its Subsidiaries, as applicable, in accordance with its respective terms and (ii) is in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description None of the material terms, as applicable), between the Company, its Subsidiaries or, to the Company’s Knowledge, except as set forth on one handthe Disclosure Schedules, and the any other parties party thereto, on is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. To the other handCompany’s Knowledge, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Complete and correct copies of each Material Contract will not fulfill its obligations thereunder in (including all material respectsmodifications, amendments and the Company has not received any notice of termination or intent supplements thereto and waivers thereunder) have been made available to terminate by any party to any Material ContractParent.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Except for this Agreement and the Contracts specifically identified in Schedule 2.7 of the Company Disclosure Schedule sets forth Letter, the Company is neither a true, complete and correct list of each party to or bound by any of the following Contracts to which the Company is (each a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):
(i) all Contracts that contain restrictions any Contract with respect to payment of dividends or any other distribution in respect customer of the Membership Units or other Equity Company involving payments to the Company in excess of the Company$50,000 per annum;
(ii) any Contract that by its terms requires the payment by license, sublicense or on behalf of other permission granted to any third party (including resellers) with respect to the Company in excess of $100,000 per annum Products or the delivery by Company-Owned Intellectual Property (other than the Company Contracts entered into with customers in the ordinary course of goods or services with a fair market value in excess of $100,000 per annum or provides for business (collectively, the Company to receive “Customer Contracts”)) involving payments in excess of $100,000 50,000 per annum;
(iii) all Contracts involving a loan any license, sublicense or other permission pursuant to which the Company uses or possesses any Third Party Software or the Intellectual Property attributable thereto (other than accounts receivable owing from trade debtors “shrink wrap” and similar generally available commercial end-user licenses to software that is not redistributed with or used in the Ordinary Course of Business) development or advance to (other than travel and entertainment advances to the employees provision of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment Products) involving payments in excess of $25,00050,000 per annum;
(iv) any Contract that (i) requires involving payments or expenditures by the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service50,000 per annum;
(v) any Contract that relates expires or may be renewed at the option of any Person other than the Company so as to an acquisition or divestiture expire more than one year after the date of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companythis Agreement involving payments in excess of $50,000 per annum;
(vi) any Contract under which obligating the Company has to enhance, customize or otherwise modify the Company Products or create or deliver, or accelerate the delivery of, any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrancenew Company Products;
(vii) all Contracts under which any Person (trust indenture, mortgage, promissory note, loan agreement or other than Contract for the Company) has directly borrowing of money, any currency exchange, commodities or indirectly guaranteed Indebtedness other hedging arrangement or any leasing transaction of the Company type required to be capitalized in excess of $50,000accordance with GAAP;
(viii) any bonds or Contracts Contract limiting the freedom of Guarantee in which the Company acts as a surety to engage or guarantor participate, or compete with respect any other Person, in any line of business, market or geographic area, or to make use of any obligation (fixed Company-Owned Intellectual Property or contingent) otherwise limiting the right of another Personthe Company to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development Contract granting most favored nation pricing or similar arrangementprovisions;
(x) all Contracts involving any resolution or settlement Contract granting any exclusive rights of any actual type or threatened Action under which the Company has scope to any obligation or Liability that will continue after the Closing DatePerson;
(xi) any Contract limiting granting rights of refusal, rights of first negotiation or restraining the Company or similar rights and/or terms to any successor thereto from engaging or competing in any manner, in any location or in any businessPerson;
(xii) all Affiliate Contractsany Contract pursuant to which the Company is a lessor or lessee of any real property;
(xiii) any Company IP Agreements as well as Contract of guarantee, support, indemnification, assumption or endorsement of, or any Contract under which the Company is a party providing for the license of or settlement similar commitment with respect to any Intellectual Property including, without limitationto, the Company’s Intellectual Property (indebtedness of any other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseePerson;
(xiv) any Contract concerning Contracts relating to the acquisitionmembership of, dispositionor participation by, occupancythe Company in, management or operation the affiliation of the Company with, any Real Property owned, leased industry standards group or used by the Companyassociation; 50,000 per annum;
(xv) all collective bargaining agreements entered into any Contract providing for the development of any software, content, technology or Intellectual Property, independently or jointly, by or for the CompanyCompany (including development pursuant to a Customer Contract), (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons or (C) any Contract that involves the payment of royalties to any other Person in excess of $50,000 per annum;
(xvi) any agreement of indemnification or warranty or any Contract providing that containing any support, maintenance or service obligation or cost on the part of the Company indemnify any Person in an amount that would be material to the Company, (other than indemnities contained in agreements for the purchase, sale or license of any such agreement products or services entered into by the Company in the Ordinary Course ordinary course of Businessbusiness);
(xvii) any Contracts Contract with any Governmental Authority to which the Company is a partylabor union or any collective bargaining agreement or similar contract with its employees;
(xviii) any Contracts that limitContract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company, in any material respect, connection with this Agreement and the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timetransactions contemplated hereby;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) Contract pursuant to which the Company is has acquired a party and business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any contract pursuant to which are not cancellable without it has any material penalty or without more than ninety (90) days’ notice; andownership interest in any other Person;
(xx) any Contract to purchase, lease settling any Proceeding or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)threatened Proceeding; and
(xxi) any other Contract or obligation not listed in clauses (i) through (xviii) that individually had or has a value or payment obligation in excess of $50,000 per annum or is otherwise material to the operation of Company or its businesses, operations, financial condition, properties or assets or on which the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Company’s businesses, operations, financial condition, properties or assets is substantially dependent.
(b) The Company is All Material Contracts are in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its termswritten form. The Company has performed in all material respects all of the obligations required to be performed by it and is not received notice of any breachin, nor alleged to be in, default or notice of termination by any Person under any Material Contract. A trueThere exists no default or event of default or event, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (occurrence, condition or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other handact, with respect to the subject matter thereof. No event or circumstance has occurred thatCompany or, to the Company’s Knowledge, with notice or respect to any other contracting party, which, with the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a default or event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe (ii) give any party the right to a rebate, chargeback, refund, credit or penalty under any Material Contract will not fulfill its obligations thereunder in all material respectsor the right to cancel, and the terminate or materially modify any Material Contract. The Company has not received any notice of termination or intent other communication regarding any actual or possible violation or breach of, default under, or intention to terminate by any party to cancel or adversely modify any Material Contract.
(c) Each of the Material Contracts is in full force and effect and constitutes a legal, valid and binding agreement of the Company, and the Company has no Knowledge that any Material Contract is not a legal, valid and binding agreement of any other party thereto, subject in each case only to the effect, if any, of (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors or (ii) general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief). No Customer Contract permits a customer to sublicense or otherwise transfer to a third party the Company Products, the Company Proprietary Software or any Intellectual Property attributable thereto.
(d) The Company has made no Liability for material commitments (including with respect to customizations, product development or payment terms) to any customers that are not contained in the deferred purchase price Customer Contracts.
(e) True and complete copies of propertyeach Material Contract, goods together with all amendments and supplements thereto and all waivers of any terms thereof, have been provided, or servicesmade available, whether connected or not to Acquiror prior to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementdate hereof.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Inc)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth 2.14 contains a true, complete and correct accurate list of each all Contracts of the following Contracts categories to which any of the Company Terminals Companies is a party or by which the Company any of them is bound and which have not been entirely fulfilled or performed as of the date of this Agreement (such Contracts, collectively, the “"Material Contracts”"):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii1) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides continuing contracts for the Company to receive payments in excess purchase of $100,000 per annum;
(iii) all Contracts involving a loan materials, supplies, or equipment (other than accounts receivable owing from trade debtors purchase contracts and orders for inventory in the Ordinary Course ordinary course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Businessbusiness consistent with past practice), (2) management, service, consulting, or investment inother similar types of contracts or (3) advertising agreements or arrangements, any Person or any agreement relating to the making of in any such loan, advance or investment in excess of $25,000;
(iv) any Contract case that (i) requires the Company have an aggregate committed future liability to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the applicable Terminals Company) in excess of $1,000,000 and that is not terminable by the applicable Terminals Company by notice of not more than 60 days for a cost of less than $1,000,000;
(ii) material Intellectual Property licenses (including any license or other agreement under which the applicable Terminals Company is licensee or licensor of any such Intellectual Property);
(iii) agreements under which any of the Terminals Companies has directly or indirectly guaranteed Indebtedness indebtedness of any Person in the Company principal amount individually in excess of $50,0001,000,000;
(iv) agreements under which any of the Terminals Companies is obligated to advance, loan, extend credit, or make a capital contribution to, or other investment in, any Person (other than any of the Terminals Companies), in any such case that, individually, is in excess of $1,000,000;
(v) all Contracts, leases or easements involving annual rental payments or receipts in excess of $1,000,000;
(vi) all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower or lender, in excess of $1,000,000 and all related security agreements or similar agreements associated therewith;
(vii) Contracts which limit the freedom of any of the Terminals Companies to compete with any Person or operate at any location, including, without limitation, any preferential rights granted to third parties to purchase or lease such location;
(viii) any bonds Contract for a pending or Contracts of Guarantee in which the Company acts as a surety completed acquisition or guarantor with respect to any obligation disposition (fixed by merger or contingentotherwise) of another Person;
all or substantially all of the assets (ixother than inventory) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement capital stock of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
Person (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardwareTerminals Companies) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.the
Appears in 1 contract
Sources: Stock Purchase Agreement (Kinder Morgan Energy Partners L P)
Material Contracts. (a) Except for this Agreement and except as set forth in Section 4.10(a4.6(a) of the Disclosure Schedule, the Company Disclosure Schedule sets forth is neither a true, complete and correct list of each party to nor bound by any of the following Contracts (each a "Material Contract"):
(i) any maintenance or support Contract with any customer of the Company in excess of $25,000 on an annual basis in the current fiscal year;
(ii) any distributor, original equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer's representative Contract (not otherwise included in Section 4.6(a)(i)) pursuant to which the Company has made or received aggregate payments in excess of $50,000 since January 1, 2010 (including under any master sales agreement regardless of whether each purchase order may be less than $50,000);
(iii) any Contract for the prospective purchase, sale, license or Exploitation of materials, supplies, equipment, services, Software, Intellectual Property or other assets requiring the Company to pay pursuant to any such individual Contract more than $50,000 over the life of the Contract;
(iv) any Contract limiting the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to Exploit any Company Intellectual Property or otherwise limiting the right of the Company to (A) sell, distribute, manufacture or Exploit any Company Products or (B) purchase, obtain or Exploit any Software, components, parts, subassemblies or services;
(v) any Contract granting most favored nation pricing or similar provisions;
(vi) any Contract granting any exclusive rights with respect to the Company Products or Company Intellectual Property of any type or scope to any Person;
(vii) any Contract pursuant to which the Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in excess of $50,000 per annum;
(viii) any trust indenture, mortgage, security agreement, promissory note, loan or credit agreement, or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(ix) any Contract of guarantee, support, assumption or endorsement of indebtedness of any other Person;
(x) any licenses, sublicenses and other Contracts as to which the Company is a party and pursuant to which any Person is authorized to use or Exploit any Company Intellectual Property or Company Product (other than standard and customary licenses, sublicenses and other Contracts entered into with the Company's customers in the Ordinary Course of Business in connection with license or sale of Company Products);
(xi) any licenses, sublicenses and other Contracts to which the Company is a party or by and pursuant to which the Company acquired or is bound authorized to use or Exploit any material Third Party Intellectual Property, other than "shrink wrap" and which have similar generally available commercial end-user licenses to Software that is not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):redistributed with any Company Product;
(ixii) all Contracts that contain restrictions with respect to payment any Contract providing for the development of dividends any Software, content, technology or any other distribution in respect of the Membership Units Intellectual Property, independently or other Equity of jointly, by or for the Company;
(iixiii) (A) any joint venture Contract, (B) any Contract that by its terms requires involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons or (C) any Contract that involves the payment by or on behalf of the Company royalties to any other Person in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 25,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning for the acquisition, disposition, occupancy, management or operation employment of any Real Property owned, leased director or used officer of the Company or any other type of Contract with any director or officer of the Company that is not immediately terminable by the CompanyCompany without any Liability;
(xv) all collective bargaining agreements entered into any Contract for employment of any individual not set forth in subsection (xiv) or with any independent contractor, other than offer letters or similar Contracts that can be terminated at will without Liability and standard contracts required by the Companylaw for non-U.S. employees, a form of which, and any material deviations therefrom, have been made available to Parent;
(xvi) any Contract providing that or plan (including any stock option, merger or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company indemnify or any Person in an amount that would be material options, warrants, convertible notes or other rights to the Companypurchase or otherwise acquire any such shares of stock, other than any such agreement entered into in securities or options, warrants or other rights therefor, except for award notices and agreements under the Ordinary Course of BusinessCompany Stock Plan;
(xvii) any Contracts Contract with any Governmental Authority to which the Company is a partylabor union or collective bargaining agreement or similar contract with its employees;
(xviii) any Contracts that limitContract pursuant to which the Company has acquired a business or entity, or material assets of a business or entity, whether by way of purchase, consolidation, purchase of stock, purchase of assets, merger, consolidation, license or otherwise, or any Contract pursuant to which it has any material equity ownership interest in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;other Person; or
(xix) all any other Contract not listed in clauses (i) employment agreements through (excluding, for certainty, any employees who are employed at willxviii) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount that individually has payment obligations in excess of $100,000, individually (in 50,000 over the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Contract.
(b) All Material Contracts are in written form. The Company is has performed in all material compliance with respects all of the terms and provisions of obligations required to be performed by it under each Material Contract. The CompanyThere exists no default or event of default or event, and occurrence, condition or act, with respect to the Knowledge Company or, to the Company's knowledge, with respect to any other contracting party, which, with the giving of notice, the lapse of time or the completion of the CompanyMerger and the transactions contemplated thereby, the other party to (i) is or would become an event of default or a material default under any Material Contract is not in breach or default (ii) would give any third party the right to accelerate the maturity or performance of any material obligation of the Company under any of its termsMaterial Contract or to cancel, terminate or materially modify any Material Contract or cause the granting or triggering any other material right under any Material Contract. The Company has not received any written notice of regarding any breachoutstanding violation or breach of, default under, or notice of termination by any Person under intention to cancel or modify any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each of the Material Contract Contracts is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire effect and constitutes a legal, valid and binding agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handand to the Company's knowledge is a legal, valid and the binding agreement of any other parties party thereto, on the other hand, with respect subject only to the subject matter thereof. No event effect, if any, of (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or circumstance has occurred thatother similar laws relating to or affecting the rights or remedies of creditors or (ii) general principles of equity, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result whether considered in a termination thereof proceeding in equity or would cause at law (including the possible unavailability of specific performance or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractinjunctive relief).
(d) The Company has no Liability for True and complete copies of each Material Contract, together with all amendments and supplements thereto, have been provided to Parent under appropriate headings in the deferred purchase price of property, goods or services, whether connected or not electronic due diligence data room hosted by RR ▇▇▇▇▇▇▇▇ under the name Project Milan at least two (2) days prior to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementAgreement Date.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule SCHEDULE 3.13 sets forth a true, correct and complete and correct list of each of the following Contracts all contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which the any Company Party is a party (or by intends to become a party) or to which the Company any of its assets or properties is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):bound:
(i) all Contracts that contain restrictions with respect under which any Company Party is indemnified for or against any liability in excess of $100,000 or under which any Company Party is or could be obligated to payment indemnify any Person in excess of dividends or any other distribution in respect of the Membership Units or other Equity of the Company$100,000;
(ii) under which any Contract that by its terms requires Company Party leases personal property from or to third parties under Capital Leases which involve rental payments of at least $25,000 per annum or under operating leases which involve rental payments of at least $100,000;
(iii) for the payment by purchase or on behalf sale of products or other personal property or for the furnishing or receipt of services (A) which calls for performance over a period of more than one (1) year, (B) which involves payments of more than the $100,000 in the aggregate or (C) in which any Company Party has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any Person;
(iv) (A) granting representation, marketing or distribution rights or (B) relating to Intellectual Property (including, without limitation, license, franchise or similar agreements);
(v) under which any Company Party has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $100,000 per annum 100,000;
(vi) establishing or the delivery by the Company maintaining any partnership, joint venture or strategic alliance;
(vii) under which there is or may be imposed a security interest or other Lien on any of goods its assets, whether tangible or services with a intangible, whose net book value or fair market value is in excess of $100,000 per annum 50,000 (other than the security interests or provides for Liens granted in favor of the Purchaser and the Bank);
(viii) concerning any confidentiality or non-solicitation obligations entered into outside the ordinary course of business;
(ix) under which any Company Party is restricted from carrying on its business or any part thereof, or from competing in any line of business or with any Person;
(x) with officers, directors, employees, consultants or independent contractors of any Company Party;
(xi) resulting in the creation of any Lien (including any lease notifications) other than a Permitted Lien;
(xii) involving any Affiliates of any Company Party;
(xiii) under which the consequences of a default or termination could have a Material Adverse Effect;
(xiv) under which any Company Party will (A) receive aggregate payments from customers, (B) make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from any other Persons, in each case in excess of $100,000 per annum;
(iiixv) all Contracts involving under which any Governmental Authority is a loan party (other than accounts receivable owing from trade debtors in the Ordinary Course of Businessor a beneficiary thereof) or advance that involves payments to (other than travel and entertainment advances to the employees of the any Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment Party in excess of $25,000;500,000 and that is less than fifty percent (50%) completed by the Company Parties; and
(ivxvi) not entered into in the ordinary course of business and not otherwise disclosed on SCHEDULE 3.13 in response to any Contract that of the foregoing clauses. All of the contracts, commitments, licenses, agreements, obligations or arrangements described in clauses (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or through (iixvi) requires that the Company deal exclusively with a third party in connection above, together with the sale real property leases, subleases, licenses and other interests described in SECTION 3.24, whether entered into prior to, on or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining , are collectively referred to herein as the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)"MATERIAL CONTRACTS".
(b) The Company is in material compliance with the terms and provisions of Except as disclosed on SCHEDULE 3.13(b), each Material Contract. The Company, and to the Knowledge Contract existing as of the Companydate hereof is a legal, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding obligation of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding Party or Parties that are party thereto, on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, enforceable against each of them in accordance with respect its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors' rights generally or by equitable principles relating to enforceability, and is in full force and effect. The parties to each Material Contract existing as of the subject matter date hereof are in substantial compliance with the terms thereof. No event , and no default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under by any Material Contract or result in Company Party or, to the best knowledge of the Company Parties, any other party thereto exists thereunder.
(c) Except as set forth on SCHEDULE 3.13(c), neither the Company nor any of its Subsidiaries is a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill contract, commitment, license, agreement, obligation or arrangement that restricts it from carrying on its obligations thereunder business or any part thereof, or from competing in all material respects, and the Company has not received any notice line of termination business or intent to terminate by with any party to any Material Contractother Person.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Material Contracts. Except as filed as exhibits to the Company SEC Documents and made publicly available no less than one (a1) Business Day prior to the date of this Agreement, Section 4.10(a) 4.11 of the Company Disclosure Schedule sets forth a true, true and complete and correct list of each of the following Contracts Contract to which the Company or any of its Subsidiaries is a party or by which any of its or their properties or assets are bound, which as of the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):date of this Agreement:
(ia) all Contracts that contain restrictions with respect to payment is a “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanyExchange Act);
(iib) any Contract that by its terms requires the payment by or on behalf of the Company involves annual expenditures in excess of $100,000 per annum 1,000,000, whether or not entered into in the delivery by ordinary course of business;
(c) is with a Principal Customer;
(d) is with a Principal Supplier;
(e) (i) materially restricts or prohibits the Company or any of goods its Subsidiaries from competing with any other Person in any line of business or any geographic area or from purchasing or selling any products or services with in any geographic region, (ii) grants exclusivity or “most favored nation” status to any other Person or (iii) contains a fair market standstill or similar agreement that will be in effect as of the Closing pursuant to which the Company or any of its Subsidiaries has agreed not to acquire the assets or securities of another Person in any material respect;
(f) relates to the acquisition or disposition (in each case, whether by merger, consolidation, acquisition or sale of stock or otherwise) of (i) any equity interest in any Person or a substantial portion of the assets of any Person, in each case having a value in excess of $100,000 per annum 3,000,000 that has not yet been consummated or provides for that has continuing material obligations (including indemnification, deferred payment obligations or other contingent obligations), other than the sale and purchase of inventory in the ordinary course of business or (ii) any equity interest in the Company or a substantial portion of the assets of the Company and its Subsidiaries not in the ordinary course of business and having a value of more than $5,000,000;
(g) grants to receive payments any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any assets of the Company or any of its Subsidiaries that have a value in excess of $100,000 per annum1,000,000;
(iiih) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition a partnership, joint venture or divestiture of material assets that contains covenantssimilar arrangement, indemnities or other contractual obligations that could impose a Liability that is material unless immaterial to the Company;
(vii) is a settlement, non-prosecution or similar agreement that provides for any continuing material obligations (whether in the form of performance or restraints on action) by the Company or any of its Subsidiaries;
(j) is a Government Contract involving annual payments of $1,000,000 or more;
(k) (i) provides for any material license granted by any third party for the use of Intellectual Property, other than (A) licenses of Open Source Software or (B) non-exclusive, “click-through”, “shrink-wrapped” or other commercially available off-the-shelf Software or (ii) provides for any material license granted to any Person of any Owned Intellectual Property, other than non-exclusive licenses granted by the Company or any of its Subsidiaries to customers, or to vendor or service providers for the benefit of the Company or its Subsidiaries, in each case, in the ordinary course of business;
(l) restricts the payment of dividends or the making of distributions to stockholders or the repurchase of stock or other equity of the Company or any of its Subsidiaries (other than any Contract in respect of non-recourse financing or tax equity financing in respect of a project);
(m) is a Company Employee Agreement with any current executive officer of the Company or any member of the Company Board;
(n) is a collective bargaining agreement or other Contract with any union;
(o) is a Contract, other than any agreement related to their employment, between the Company or any of its Subsidiaries, on the one hand, and any director or executive officer of the Company or any Person beneficially owning five percent (5%) or more of the outstanding shares of Company Common Stock or any of their respective Affiliates, on the other hand (other than any Company Benefit Plan); and
(p) is a Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is Subsidiary incurs Indebtedness having a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an principal amount in excess of $100,0001,000,000, individually (other than accounts receivables and payables incurred or arising in the case ordinary course of business. Each contract of the type described above in Section 4.11 is referred to herein as a lease, per annum) “Material Contract”. True and correct copies of each Material Contract have been made available to Parent. Except for expirations or $150,000 terminations in the aggregate (ordinary course of business in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance accordance with the terms and provisions of such Material Company Contracts or that would not have a Company Material Adverse Effect, (x) each Material Contract. The CompanyContract is valid and binding on the Company or its Subsidiaries and, and to the Knowledge of the Company, the each other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachthereto, default or notice of termination by any Person under any Material Contract. A trueas applicable, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract effect (or description) sets forth except as such enforceability may be limited by the entire agreement Bankruptcy and understanding (or complete description of the material terms, as applicableEquity Exceptions), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No (y) there is no event or circumstance condition which has occurred thator exists, which constitutes or would reasonably be expected constitute (with notice or lapse without notice, the happening of time any event or both, would constitute an event the passage of time) a default or breach under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and by the Company has not received or any notice of termination or intent to terminate by any party to any its Subsidiaries that would have a Company Material ContractAdverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the The Company Disclosure Schedule sets forth a has delivered or otherwise made available to Parent true, correct and complete and correct list of each copies of the following Contracts contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company is a party affecting the obligations of any party thereunder) to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled any of its properties or performed (such Contracts, collectively, the “Material Contracts”):assets are bound:
(i) all Contracts that contain restrictions with respect to payment any agreement presently in effect for the purchase of dividends or any other distribution in respect of the Membership Units inventory, supplies, equipment or other Equity real or personal property, or the procurement of the Companyservices, except individual purchase orders or aggregate purchase orders to a single vendor involving payments of less than $100,000;
(ii) any Contract that by its terms requires the payment by lease presently in effect or on behalf ownership of the Company in excess of $100,000 per annum equipment, machinery or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive other personal property involving aggregate annual payments in excess of $100,000 per annum100,000;
(iii) all Contracts any agreement presently in effect for the sale or lease of products or furnishing of its services, except individual purchase orders or aggregate purchase orders from a single customer involving a loan payments of less than $100,000;
(iv) any joint venture, partnership or other contract or arrangement presently in effect involving the sharing of profits other than accounts receivable owing from trade debtors in the Ordinary Course of Businesslicense agreements;
(v) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement presently in effect relating to the making purchase or acquisition, by merger or otherwise, of a significant portion of its business, assets or securities by any other person, or of any such loanother person by it, advance other than as contemplated herein;
(vi) any agreement presently in effect containing a covenant or investment covenants which purport to limit its ability or right to engage in any lawful business activity material to it or to compete with any person or entity in a business material to it;
(vii) any agreement presently in effect pursuant to which it has appointed any organization or person to act as its distributor or sales agent or pursuant to which it has been appointed a distributor or sales agent by any third party;
(viii) any agreement presently in effect with any of its officers, directors or affiliates;
(ix) any agreement presently in effect for the license of any patent, copyright, trade secret or other proprietary information agreements involving the payment by or to the Company in excess of $25,000;
(ivx) any Contract that (i) requires the Company agreement presently in effect involving payments to purchase any product or service in excess obligations of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount it in excess of $100,000, individually (not otherwise described in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)this Section 2.21; andor
(xxixi) any other Contract that is material to agreement of indebtedness or capital equipment leases presently in effect in excess of $100,000 (collectively, together with any such contracts entered into in accordance with Section 4.1, the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a"Contracts").
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as set forth in Section 4.10(a) 2.21 of the Company Disclosure Schedule.:
(c) Each Material Contract is (i) valid and binding on There is no default under any Contract either by the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth or, to the entire agreement and understanding (or complete description knowledge of the material terms, as applicable), between the Company, on one handby any other party thereto, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, that with notice or the lapse of time or boththe giving of notice or both could constitute a default thereunder by the Company or, would constitute an to the knowledge of the Company, any other party, in any such case, individually or in the aggregate, in which such default or event of default under any could reasonably be expected to have a Material Contract or result in a termination thereof or would cause or permit Adverse Effect on the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any Company;
(ii) No party to any Material such Contract will not fulfill its obligations thereunder in all material respects, and has given notice to the Company has not received of or made a claim against the Company with respect to any notice breach or default thereunder, in any such case in which such breach or default could reasonably be expected to have a Material Adverse Effect on the Company; and
(iii) To the knowledge of termination or intent to terminate by any the Company, no party to any Material such Contract intends to cancel, withdraw, modify or amend any such Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (ai) Section 4.10(a3.01(n)(i) of the Company Disclosure Schedule Letter sets forth a true, complete and correct list of each of the following Contracts to which which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by to which the Company is bound and which have not been entirely fulfilled or performed its assets are subject (such Contractseach, collectively, the a “Material ContractsContract”):
(iA) all Contracts that contain restrictions each “material contract” (as described in Item 601(b)(10) of Regulation S-K of the SEC as determined as of the date of this Agreement, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(viB) any each Contract under which the Company has any outstanding Indebtedness (1) that includes obligations not to (or evidencing an Encumbrance on any property that otherwise restricts or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, limits the ability of the Company to or its Subsidiaries or affiliates to) compete or engage in any line of business or with any Person geographic area or (2) that includes obligations that restrict the ability of the Company or its Subsidiaries or affiliates to conduct business in any geographic area or during any period of timearea;
(xixC) each Contract (other than any Company Benefit Plan) providing for or resulting in payments by the Company or any of its Subsidiaries that exceeded $100,000 in the calendar year ended December 31, 2023, or that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries that exceed $100,000;
(D) all (i) employment agreements (excludingContracts granting to any person an option or a first refusal, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (first offer or similar arrangements) preferential right to which purchase or acquire any material assets of the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andits Subsidiaries;
(xxE) all Contracts (1) for the granting or receiving of a license, sublicense, covenant not to sue or similar right with respect to Company Intellectual Property material to the business of the Company and its Subsidiaries (2) under which any Contract person is obligated to purchase, lease pay or otherwise acquire has the right to ownreceive a royalty, use license fee, franchise fee or lease any property similar payment in which it is reasonably expected to pay or assetsreceive a royalty, including such Contracts entered into by an Affiliate of the Companylicense fee, for an amount franchise fee or similar payment in excess of $100,000, individually or (3) that materially restricts the Company’s or its Subsidiaries’ right to use or exploit any Company Owned Intellectual Property, in each case of clause (1) and clause (2), other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software or information technology services that have been granted on standardized, generally available terms;
(F) all partnership, joint venture or other similar agreements or arrangements;
(G) any agreement with any director, officer or stockholder of the Company or any Subsidiary;
(H) any agreement relating to Indebtedness of the Company or its Subsidiaries, except any such agreement with an aggregate outstanding principal (or committed) amount not exceeding $100,000;
(I) any agreement for the disposition or acquisition by the Company or any of its Subsidiaries, with material obligations of the Company or its Subsidiaries (other than confidentiality obligations) remaining to be performed or Liabilities of the Company or its Subsidiaries continuing after the date of this Agreement, of any business or any assets other than in the case ordinary course of a leasebusiness consistent with past practice;
(J) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, per annum) including intercompany dividends or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term)distributions other than such restrictions or limitations that are required by applicable Law; and
(xxiK) all agreements with any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Governmental Entity.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Investment Agreement (SilverSun Technologies, Inc.)
Material Contracts. (a) Section 4.10(a2.7(a) of the Company Disclosure Schedule sets forth forth, as of the date of this Agreement, a true, complete and correct list of each Contract (other than completed purchase orders entered into in the ordinary course of business) of the following Contracts to which Group Companies, that is of the Company is type set forth below (each, a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):
(i) all a Contract (or group of related Contracts that contain restrictions with respect to payment a single transaction or series of dividends related transactions), other than a Government Contract, that involves payments, performance or services or delivery of goods or materials to or by any other distribution Group Company of any amount or value in respect of the Membership Units excess of, or other Equity of the Companyreasonably expected to exceed, $250,000 in any twelve (12)-month period;
(ii) any a Contract that by its terms requires the payment by is a joint venture agreement, partnership agreement, strategic alliance agreement or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumsimilar agreement;
(iii) all Contracts involving a loan Contract that contains any (other than accounts receivable owing from trade debtors A) “most favored nation” pricing or similar rights in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making favor of any such loanPerson, advance or investment in excess of $25,000;
(ivB) provision expressly requiring any Contract that (i) requires the Company Group Companies to purchase any product goods or service in excess of $100,000 services exclusively from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
, (ixC) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, express restriction on the ability of the Company any Group Companies to compete in any line of business or with any Person or to provide services generally or in any market segment or any geographic area area, or during (D) restriction on the ability of any period Group Companies to solicit or hire any Person (including any employees, customers or vendors) other than such restrictions set forth in confidentiality or non-disclosure agreements entered into in the ordinary course of timebusiness;
(xixiv) all a Contract pursuant to which any Group Companies (ior, after the Closing, Buyer and its Subsidiaries) employment agreements has incurred or become liable for any Funded Indebtedness owed to a Person other than any other Group Companies, or pursuant to which any Group Companies has granted any Lien on any of its assets or any assets of any Group Companies have become subject to any Lien;
(excludingv) a Contract (A) granting an option to acquire, for certaintysell, lease or license any asset of any Group Companies or (B) granting any right of first offer, right of first refusal or right of first negotiation in respect of any asset of any Group Companies;
(vi) a Contract pursuant to which any Group Companies is committed to make capital expenditures in excess of $250,000 in the aggregate that are not subject to reimbursement by the counterparty under a Contract;
(vii) a Contract relating to (A) the disposition (whether by merger or sale or purchase of stock, assets or otherwise) of any assets of, or any Equity Securities in, any employees who are employed at willGroup Companies or (B) the acquisition (whether by merger or sale or purchase of stock, assets or otherwise) by any Group Companies of any material assets of, or any Equity Securities in, any Person, in each case, other than sales of products and (ii) Contracts services in the ordinary course of business consistent with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticepast practice; and
(xxviii) a Contract pursuant to which rights in any Contract material Intellectual Property Rights are granted, whether by any Group Companies to purchase, lease any other Person or otherwise acquire the right by any other Person to own, use or lease any property or assetsGroup Companies, including such Contracts entered into by an Affiliate of the Companylicense agreements, for an amount in excess of $100,000coexistence agreements and covenants not to ▇▇▇, individually but excluding any (A) “off-the-shelf” Software that is readily available pursuant to a commercial license agreement, (B) non-exclusive licenses granted to customers, distributors, resellers or sales representatives in the case ordinary course of a leasebusiness, per annum(C) open-source licenses, and (D) assignments of Intellectual Property Rights from employees or $150,000 independent contractors to any Group Company in the aggregate (in the case ordinary course of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)business.
(b) The Company Except as set forth on Section 2.7(b) of the Disclosure Schedule, (i) each Material Contract and each Material Government Contract is in material compliance with the terms full force and provisions of each Material Contract. The Companyeffect and is a legal, valid and binding obligation of, and is enforceable against, the Group Companies as applicable, in accordance with its terms, and, to the Knowledge of the CompanySeller, is a legal, valid and binding obligation of, and is enforceable against, the other parties thereto in accordance with its terms, in each case as such enforcement may be limited by the Remedies Exception; (ii) as to each Material Contract and each Material Government Contract, there does not exist thereunder any material breach or default on the part of any Group Companies or, to the Knowledge of Seller, any other party to any Material Contract is or Material Government Contract, and there does not in exist, to Seller’s Knowledge, any event, occurrence or condition, which (after notice, passage of time or both) would constitute or give rise to any such breach or default under thereunder; and (iii) none of Seller or any of its terms. The Company Affiliates (including any of the Group Companies) has not received any written or, to the Knowledge of Seller, threatened notice of any breachtermination, default cancellation or notice of termination by any Person under non-renewal that is currently in effect with respect to any Material Contract or Material Government Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid Seller has made available to Buyer a true, correct and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each complete copy of each Material Contract (or description) sets forth and, in the entire agreement and understanding (or complete description event of any Material Contract that is not written, a summary of the material terms, as applicableterms thereof), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Section 4.10(a3.9(a) of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each as of the following Contracts to which date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any:
(i) all Contracts Contract (other than this Agreement) that contain restrictions with respect would be required to payment of dividends or be filed by the Company as an exhibit to any other distribution in respect of the Membership Units or other Equity of the CompanyCompany SEC Documents;
(ii) any Contract that by its terms requires the payment by indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or on behalf other evidence of the Company Indebtedness or agreement providing for Indebtedness (including deferred purchase price of property and capital leases) in excess of $100,000 per annum or 2.5 million individually and $10 million in the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumaggregate;
(iii) all Contracts involving Contract that is a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Labor Agreement;
(iv) any Contract that (i) requires containing covenants of the Company or any of its Subsidiaries to purchase any product indemnify or service in excess hold harmless another Person, unless such indemnification or hold harmless obligation would not reasonably be expected to exceed a maximum of $100,000 from 2.5 million (other than Contracts related to the sale of Company Products, ordinary course employment Contracts with non-executive employees or Contracts relating to a third party director’s or (ii) requires that the Company deal exclusively with a third party in connection officer’s service as such with the sale or purchase of any product or serviceCompany);
(v) any Contract that relates is a material sole source supply Contract or material original equipment manufacturer Contract or material private label Contract;
(vi) Contract that contains a put, call, right of first refusal, lock-up or other provision pursuant to an acquisition which the Company or divestiture any of material its Subsidiaries would be required to acquire or dispose of, or would be restricted from acquiring or disposing of, as applicable, any equity interests of any Person or assets that contains covenantshave a fair market value or purchase price of more than $2.5 million (for the avoidance of doubt, indemnities this clause (vi) shall not be deemed to include any purchase orders entered into the ordinary course of business pursuant to which the Company purchases raw materials or utilities);
(vii) settlement agreement or similar agreement with a Governmental Entity or Order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries in any such case, which is material to the Company and its Subsidiaries, taken as a whole;
(viii) Contract (other than this Agreement) providing for indemnification (including any obligations to advance funds for expenses) of the current or former directors or officers of the Company or any of its Subsidiaries;
(ix) Contract (other than this Agreement, purchase orders entered into in the ordinary course of business or agreements between the Company and any of its wholly owned Subsidiaries or between any of the Company’s wholly owned Subsidiaries) that resulted in aggregate payments to or from the Company or any of its wholly owned Subsidiaries for more than $2.5 million in calendar year 2012, or that to the Company’s Knowledge would reasonably be expected to result in aggregate payments to or from the Company or any of its wholly owned Subsidiaries for more than $5 million in calendar year 2013;
(x) Contract that is a partnership, limited liability company, joint venture or other contractual obligations similar agreement or arrangement relating to the formation, creation, operation, management or 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 directly or indirectly wholly owned Subsidiary of the Company (each, a “Joint Venture”);
(xi) Contract that could impose a Liability grants “most favored nation” status in respect of any matter that is reasonably likely to be material to the Company;
(vixii) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining between the Company or any successor thereto from engaging of its Subsidiaries, on the one hand, and any director or competing in officer of the Company or any manner5% Holder of the Company or their immediate family members, in any location on the other hand (other than employment Contracts, indemnification Contracts and other Contracts relating to a director’s or in any business;
(xii) all Affiliate Contractsofficer’s service as such with the Company);
(xiii) any Company IP Agreements as well as any Contract under to which the Company or any of its Subsidiaries is a party providing for the license party, or by which any of or settlement with respect to any Intellectual Property including, without limitationthem are bound, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under ultimate contracting party of which is, to the Knowledge of the Company (after inquiry of certain senior members of the legal department), is currently a licenseeGovernmental Entity;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by pursuant to which (A) the Company;, any of its Subsidiaries or any of its Joint Ventures grants to any third party any license, release, covenant not to ▇▇▇ or similar right with respect to any material Owned Intellectual Property or (B) the Company, any of its Subsidiaries or any of its Joint Ventures receives a license, release, covenant not to ▇▇▇ or similar right with respect to any material Intellectual Property owned by a third party (other than generally commercially available software in object code form); or
(xv) all collective bargaining agreements entered into by the Company;
(xvi) Contract that contains any Contract providing that provision expressly requiring the Company indemnify or any of its Subsidiaries to purchase or sell any material goods or services exclusively to or from another Person or that otherwise purports to limit either (x) the type of business in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
or its Subsidiaries may engage, (xviiiy) the manner or locations in which any Contracts that limitof them may so engage in any business or (z) the rights of the Company or any of its Subsidiaries to make, sell or distribute any products or services, in each case, in any material respect, the ability of the Company to compete . Any such Contract described in any line of business or with any Person or in any geographic area or during any period of time;
clauses (xixi)-(xv) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)“Material Contract.”
(b) The Company is in material compliance with the terms A true and provisions correct copy of each Material Contract. The CompanyContract has previously been made available to Parent (except with such redactions as may be clearly marked on such copy) and each Material Contract is valid and binding on the Company or its Subsidiaries, and as the case may be, and, to the Knowledge of the Company, the each other party thereto, subject to any the General Enforceability Exceptions, and is in full force and effect in all material respects. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Contract is not in breach or default under Adverse Effect, (i) neither the Company nor any of its terms. The Company has not received notice Subsidiaries is (and, to the Knowledge of any breachthe Company, no other party is) in default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force the Company and effect. Each its Subsidiaries have performed all material obligations required to be performed by them to date under the Material Contract Contracts and are not (with or description) sets forth without the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or the giving of notice, or both, would constitute an event of default under any Material Contract or result ) in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations breach thereunder in all material respects, and (iii) neither the Company nor any of its Subsidiaries has not received any notice of termination or intent with respect to, and, to terminate by any the Knowledge of the Company, no party has threatened to terminate, any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.12(a) of the Company Seller Disclosure Schedule Schedules sets forth a true, correct and complete and correct list of each of the following Contracts to which the an Acquired Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts any Contract or form of Contract that contain restrictions with respect to payment is a contract manufacturing agreement, and, in each case, such Contract, including any purchase orders under any such form of dividends or Contract, involves payments by any other distribution in respect of the Membership Units Acquired Company or other Equity consideration between the parties with a value in excess of the Company$2,500,000 per year;
(ii) any Contract creates (or governs the operation of) a joint venture, alliance or partnership that by its terms requires is material to the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with Acquired Companies taken as a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumwhole;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that prohibits any Acquired Company from (iA) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any mannermaterial line of business, in any geographic location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or (B) selling any material products or services of or to any other Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excludingregion, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the in each case that cannot be cancelled by an Acquired Company is a party and which are not cancellable without material penalty or without upon no more than ninety (90) days’ notice; and;
(xxiv) any Contract relating to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate (A) indebtedness of the Company, for Acquired Companies having an outstanding principal amount (or equivalent) in excess of $100,0001,250,000 other than any such Contract solely among the Acquired Companies or (B) conditional sale arrangements, individually or the sale, securitization or servicing of loans or loan portfolios, in each case in connection with which the aggregate actual or contingent obligations of the Acquired Companies under such Contract are greater than $1,250,000;
(v) any Contract that obligates an Acquired Company to provide a guarantee of the performance or payment of obligations of any third party (other than guarantees of payment of indebtedness) that would reasonably be expected to result in payments in excess of $500,000;
(vi) any Contract that is an acquisition agreement, stock purchase agreement, asset purchase agreement or other similar agreement entered into after January 1, 2010 pursuant to which any Acquired Company has made a material acquisition or disposition or pursuant to which such Acquired Company has continuing material indemnification, “earn-out” or other contingent payment obligations;
(vii) any Contract with any Governmental Body or any entity set forth on Section 3.12(a)(vii) of the Seller Disclosure Schedules that would reasonably be expected to result in payments in excess of $250,000;
(viii) any Contract pursuant to which any Acquired Company (A) receives a license to Intellectual Property from any other Person (other than Seller or any of its Affiliates), (B) grants a license to any other Person (other than Seller or any of its Affiliates) under any Company Intellectual Property or (C) is restricted in its right to use or register any material Company Intellectual Property, including co-existence agreements, in each case of a lease, per annumthe foregoing (A) or $150,000 in the aggregate through (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxiC) any other Contract that is material to the conduct or operation of the business of the Acquired Companies (other than (1) licenses to commercially available software or software-as-a-service agreements and (2) licenses or grants of rights ancillary to commercial agreements entered into in the ordinary course of business (including with respect to manufacturing, customer, supply, distribution, retail and marketing agreements);
(ix) any Contract that is a collective bargaining agreement;
(x) any Contract for the purchase of materials, supplies, goods or services, other than purchase contracts in respect of capital goods, that to Sellers’ Knowledge requires total payments of $250,000 or more that cannot be terminated on less than one hundred and twenty (120) days’ notice without payment of any material penalty.
(xi) any Contract for the sale of products that to Sellers’ Knowledge requires total payments of $5,000,000 or more that cannot be terminated on less than one hundred and twenty (120) days’ notice without payment of any material penalty;
(xii) any Contracts between an Acquired Company, on the one hand, and any Seller or any of its Affiliates (other than the Acquired Companies), on the other hand; and
(xiii) any Material Acquired Company and not otherwise disclosed pursuant to this Section 4.10(a)Lease.
(b) The Company is in material compliance with the terms and provisions Sellers have made available to Buyer copies of each Material ContractContract which are correct and complete in all material respects (subject to any redaction reasonably deemed necessary or appropriate by Sellers of information contained therein). The CompanyExcept for matters that have not had a Company Material Adverse Effect, (i) each Material Contract is in full force and effect and is a valid and binding agreement of an Acquired Company enforceable against an Acquired Company in accordance with its terms, except as such enforceability may be limited by the Enforceability Limitations and (ii) no Acquired Company nor, to the Knowledge of the CompanySellers’ Knowledge, the any other party to any Material Contract is not in material breach of or material default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Except for the Contracts described in Section 4.10(a3.1(t) of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each the Leases, the Contracts listed in Section 3.1(x) of the following Disclosure Letter and the Employment Contracts to which listed in Section 3.1(ff)(viii) of the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed Disclosure Letter (such Contracts, collectively, the “Material Contracts”):), neither Elite nor any Purchased Company is a party to or bound by:
(i) all Contracts that contain restrictions with respect any continuing Contract involving the performance of services, delivery of goods or materials, or payments to payment or by one or more of dividends Elite and the Purchased Companies, of an amount or any other distribution value in respect excess of the Membership Units or other Equity of the Company$250,000;
(ii) any Contract that involving payments to or by its terms requires one or more of Elite and the payment by Purchased Companies of an amount or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 250,000 per annum year that expires less than a year after the date of this Agreement, or provides for the that cannot be terminated by Elite or a Purchased Company to receive payments in excess of $100,000 per annumwith less than 60 days’ notice;
(iii) all Contracts involving a any trust indenture, mortgage, promissory note, loan (agreement or other than accounts receivable owing from trade debtors in Contract for the Ordinary Course borrowing of Business) money, any currency exchange, interest rate, commodities or advance to (other than travel and entertainment advances to the employees hedging arrangement or any leasing transaction of the Company extended type required to be capitalized in the Ordinary Course of Business)accordance with, or investment inin accordance with any pending amendments to, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000U.S. GAAP;
(iv) any Contract that agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (iwhether accrued, absolute, contingent or otherwise) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase Indebtedness of any product other Person, other than standard indemnification and similar provisions in any Contract with customers, suppliers, insurers, payors or servicehealthcare providers;
(v) employee leasing or contracting agreements or any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose with a Liability that is material to the Companyprofessional employer organization;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset in respect of the Intellectual Property or Software owned by, licensed to or used by Elite or any Purchased Company, in each case, other than a Permitted Encumbrance(A) licenses for generally commercially available, off the shelf software used by Elite or any Purchased Company; (B) agreements entered into by Elite or any Purchased Company with customers in the Ordinary Course; (C) non-exclusive licenses granted in the Ordinary Course;
(vii) all Contracts under any Contract for payment or reimbursement for provision of health care services by an insurance or other payor in excess of $250,000 per year;
(viii) any Contract for capital expenditures in excess of $250,000 in the aggregate;
(ix) any confidentiality, secrecy, non-disclosure or exclusivity Contract or any Contract limiting the freedom of Elite or any Purchased Company to engage in any line of business, compete with any other Person, solicit any Persons for any purpose, or otherwise to freely conduct its business;
(x) any Contract pursuant to which Elite or any Person (Purchased Company is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other than the Company) has directly or indirectly guaranteed Indebtedness of the Company personal property with a value in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any distributor, sales, advertising, agency or manufacturer’s representative Contract limiting or restraining the Company or any successor thereto from engaging or competing with annual payments in any manner, in any location or in any businessexcess of $250,000;
(xii) all Affiliate Contractsany Contract for the purchase of real property;
(xiii) any Company IP Agreements as well as Contract with any Contract under which the Company Affiliate that is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;not on arms-length terms; and
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation Business with annual payments in excess of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)$250,000.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of Excluding Contracts for which neither the Company Disclosure nor any of its Assets will be bound or have liability after Closing, Schedule 4.15(a) sets forth a true, complete and correct list of each of the following Contracts to which the Company is a party or by which any of its Assets are bound as of the Company is bound Execution Date (the Contracts listed on Schedule 4.15(a) and which have not been entirely fulfilled or performed (such Contracts, any other Contracts that meet the descriptions in this Section 4.15(a) being collectively, the “Material Contracts”):
(i) all Contracts any Contract for the future purchase, exchange, sale, gathering, compression, collection, storage, processing, treating, dehydration or transportation of Hydrocarbons or the provision of services related thereto that contain restrictions with respect to payment results in gross revenues or gross expenditures in excess of dividends or any other distribution in respect of the Membership Units or other Equity of the Company$500,000;
(ii) other than Contracts of the nature addressed by Section 4.15(a)(i), any Contract (A) for the future sale of any Asset, (B) that by its terms requires grants a right or option to purchase, lease or otherwise acquire in the payment by future any Asset, or on behalf of (C) for the Company in excess of $100,000 per annum or the delivery by the Company supply of goods or services by the Company, other than in each case any Contract with a fair market purchase or similar price or remaining value in excess of less than $100,000 per annum or provides 500,000;
(iii) other than Contracts of the nature addressed by Section 4.15(a)(i), any Contract for the Company to receive receipt of any Assets or services requiring future payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000500,000;
(iv) any Contract that (i) requires the Company to purchase any product constitutes a pipeline interconnect or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicefacility operating agreement;
(v) any Contract for lease of equipment involving aggregate payments in excess of $500,000 in any calendar year that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyare not terminable without penalty within 60 days;
(vi) any Contract under which the Company has any outstanding Indebtedness for expenditures or evidencing an Encumbrance on any property or asset other approved capital commitments in excess of the Company, other than a Permitted Encumbrance$500,000;
(vii) all Contracts under which any Person (Contract for lease of personal or real property, other than the Company) has directly or indirectly guaranteed Indebtedness of the with respect to Company Real Property, involving aggregate payments in excess of $50,000500,000 in any calendar year that are not terminable without penalty within 60 days;
(viii) any bonds or Contracts outstanding agreement of Guarantee in which guaranty by the Company acts as a surety or guarantor with respect to in favor of any obligation (fixed or contingent) Person in an amount in excess of another Person$500,000;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development Contract with Contributor or similar arrangementany Affiliate of Contributor;
(x) all any outstanding futures, swap, collar, put, call, floor, cap, option or other Contracts involving any resolution that are intended to benefit from or settlement reduce or eliminate the risk of any actual or threatened Action under which fluctuations in the Company has any obligation or Liability that will continue after the Closing Dateprice of commodities;
(xi) any Contract limiting or restraining Organizational Documents of the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessCompany;
(xii) any Contract relating to the acquisition by the Company of all Affiliate Contractsor substantially all the assets of any operating business or a majority of the capital stock or other controlling interest of any other Person;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of partnership, joint venture or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseesubstantially similar Contracts;
(xiv) any Contract concerning the acquisitionwith a supplier, dispositionvendor or service provider granting such supplier, occupancy, management vendor or operation of any Real Property owned, leased service provider exclusive rights to provide such product or used by the Companyservice;
(xv) all collective bargaining agreements entered into by the Companyany Contract that contains “take or pay” provisions;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be contains a “most favored nation” provision or a material to the Company, other than any such agreement entered into in the Ordinary Course of Businesslimitation on price increases;
(xvii) any Contracts with any Governmental Authority Contract pursuant to which the Company is a partyresponsible for any imbalances (gathering, processing, transportation or otherwise) that are associated with the Assets;
(xviii) any Contracts Contract that limit, in contains any material respect, covenant of the Company that materially limits or purports to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timearea;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) Contract which relates to Indebtedness under which the Company is has outstanding obligations in excess of $500,000 or under which it has imposed a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andsecurity interest on any of its Assets;
(xx) any Contract to purchaseemployment agreement or any change in control agreement, lease retention agreement, severance, termination or otherwise acquire the right to own, use separation agreement or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andsimilar Contract;
(xxi) any other Contract that is material independent contractor agreement requiring future payments in excess of $500,000 with any Person regularly performing services directly related to the operation of Company’s business, including the business of Operator Agreement;
(xxii) excluding the Engagement Letters, any other financial advisory or similar Contract with investment or commercial banks;
(xxiii) any Contract with any Governmental Authority; and
(xxiv) any Contract entered into or assumed by the Company and not otherwise disclosed pursuant for which the primary purpose is to this Section 4.10(a)provide for the indemnification of any Person.
(b) The Company Contributor has made available to Buyer true, correct and complete copies of all Material Contracts.
(c) Except as set forth on Schedule 4.15(c), each of the Material Contracts is in full force and effect in all material compliance with respects and constitutes a legal, valid and binding obligation of the terms and provisions of each Material Contract. The CompanyCompany and, and to the Knowledge of the Company’s Knowledge, the other party thereto, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium and other similar Laws relating to or affecting the rights of creditors generally, and general equitable principles.
(d) Except as set forth on Schedule 4.15(d):
(i) the Company has not received written notification that any Material Contract is not in full force and effect, or that the Company or any other party thereto has breached its obligations thereunder;
(ii) neither the Company nor, to the Company’s Knowledge, any other party to any Material Contract, is in material breach or material default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.; and
(ciii) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received written notification of any event, nor, to the Company’s Knowledge, has any event occurred, that (with or without notice or lapse of termination time) would reasonably be expected to result in a material breach of, or intent to terminate by a material default under, the terms of any party to Material Contract or materially adversely affect the value of any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Contribution Agreement (Silver Run Acquisition Corp II)
Material Contracts. (a) Section 4.10(a3.16(a) of the Company SALIC Disclosure Schedule sets forth contains a true, complete and correct list of each Contract in force as of the following Contracts date hereof (other than and excluding any Reinsurance Contract or Reserve Financing Contract (which are addressed in Section 3.21)) to which the any SALIC Group Company is a party or by under which any of the Company is bound and which have not been entirely fulfilled or performed SALIC Group Companies has material continuing obligations as of the date hereof that meets any of the following criteria (such Contractseach, collectively, the a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that requires expenditures by its terms requires the payment by or on behalf of the a SALIC Group Company involving consideration in excess of One Hundred Thousand Dollars ($100,000 per annum 100,000) in any twelve (12)- month period or the delivery by the SALIC Group Company or their Affiliates of goods or services with a fair market value in excess of One Hundred Thousand Dollars ($100,000 per annum or 100,000);
(ii) provides for the payments or goods or services to be received by a SALIC Group Company to receive payments in excess of One Hundred Thousand Dollars ($100,000 per annum100,000) in any twelve (12)-month period;
(iii) all Contracts involving relates to the incurrence by a loan (SALIC Group Company of any indebtedness, other than accounts receivable owing from trade debtors such Contracts entailing past or reasonably expected future amounts less than One Hundred Thousand Dollars ($100,000) in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000aggregate;
(iv) relates to the acquisition or disposition by a SALIC Group Company outside the Ordinary Course of Business of any Contract that material assets or any material business (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise) to the extent any product actual or servicecontingent material obligations of the SALIC Group Company thereunder remain in effect, other than transactions involving Investment Assets;
(v) grants a right of first refusal or first offer or similar right or materially restricts or limits a SALIC Group Company’s ability to freely engage in any Contract that relates to an acquisition business, compete with other entities, market any product or divestiture solicit employees or customers, or provides for “exclusivity” or any similar requirement, in each case in favor of material assets that contains covenants, indemnities or any Person other contractual obligations that could impose a Liability that is material to than the subject SALIC Group Company;
(vi) is a capital maintenance Contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the SALIC Group Companies or any capital maintenance Contract under or similar agreement pursuant to which the Company has SALIC Group Companies have agreed to contribute capital or surplus to any outstanding Indebtedness Person or evidencing an Encumbrance on guarantee the obligations of any property or asset of the Company, other than a Permitted EncumbrancePerson under any insurance Contract;
(vii) all Contracts under which is a collective bargaining agreement or other Contract with any Person (other than the Company) has directly labor organization, union or indirectly guaranteed Indebtedness of the Company in excess of $50,000association;
(viii) relates to the license or sublicense to a SALIC Group Company of any bonds material Intellectual Property or Contracts the license from a SALIC Group Company of Guarantee any material Intellectual Property, other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases;
(ix) is a written Contract with any Employee related to such Employee’s employment with any of the SALIC Group Companies;
(x) is a Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of profits, losses, costs or liabilities by the SALIC Group Companies with any other Person or relating to the formation, creation, operation, management or control of any partnership or joint venture in which respect of the Company acts as business of the SALIC Group Companies;
(xi) is an investment management agreement;
(xii) is a surety material indemnification agreement or guarantor guarantee in respect of the business of the SALIC Group Companies;
(xiii) is entered into with respect any Governmental Authority;
(xiv) provides for exclusivity or any similar requirement or includes a “most favored nation” provision;
(xv) contains change of control provisions;
(xvi) contains notification or termination provisions related to the insolvency of a Debtor, other than to the extent such provision would be unenforceable pursuant to Section 365(e)(1) of the Bankruptcy Code;
(xvii) requires any of the SALIC Group Companies to maintain a minimum rating or has a ratings trigger;
(xviii) provides for any obligation (fixed to loan or contingent) of contribute funds to, or make investments in, another Person;
(ixxix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of SALIC Intercompany Agreement or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeTerminating Intercompany Agreement;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit or the direct or indirect guarantee of any Contract to purchaseobligation for borrowed money of any Person or any other liability in respect of indebtedness for borrowed money of any Person, lease or otherwise acquire the right to ownin each case, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount involving liabilities in excess of One Hundred Thousand Dollars ($100,000, individually () or any direct or indirect guarantee of any obligation or liability in the case respect of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andBenefit Plan;
(xxi) any other Contract that is provides for a material to the operation or function of the business of the Company and not SALIC Group Companies to be outsourced to, or otherwise disclosed pursuant performed by, a third Person; or
(xxii) is an obligation to this Section 4.10(a)enter into any of the foregoing.
(b) The Company is in material compliance with the terms and provisions of With respect to each Material Contract. The Company, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) each Material Contract is a valid and binding obligation of the applicable SALIC Group Company and, to the Knowledge of SALIC, as of the Companydate hereof, the each other party or parties thereto, in accordance with its terms and is in full force and effect, subject to any Material Contract the Bankruptcy and Equity Exceptions, and is not in breach or default under any enforceable against the applicable SALIC Group Company and, to the Knowledge of its terms. The Company has not received notice of any breachSALIC, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company other party thereto in accordance with its respective terms terms, subject to the Bankruptcy and Equity Exceptions, (ii) the applicable SALIC Group Company is not, and, to the Knowledge of SALIC, no other party thereto is, in full force and effect. Each Material Contract (default or description) sets forth breach in any material respect in the entire agreement and understanding (performance, observance or complete description fulfillment of any obligation, covenant or condition contained in each of the material terms, as applicable), between the Company, on one handMaterial Contracts, and the other parties thereto, on the other hand, with respect (iii) to the subject matter thereof. No event Knowledge of SALIC, there does not exist any event, condition or circumstance has occurred that, omission that would constitute such a default or breach (with notice or without lapse of time or notice or both); provided, would constitute an event of default under however, that this Section 3.16(b) does not apply to any Terminating Intercompany Agreement or any other Material Contract to be rejected or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason terminated pursuant to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractthis Agreement.
(dc) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not Prior to the acquisition date of any business (earn-out or other similar type this Agreement, copies of payments) or noncompetition agreementeach Material Contract have been made available to Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Section 4.10(a) 3.13 of the Company Disclosure Schedule sets forth a true, complete and correct list of each ------------ all of the following Contracts agreements, contracts and commitments, written or oral, to which the Company or any of its subsidiaries is a party or by which the Company any of them or any of their respective properties is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, as of the “Material Contracts”):
date of this Agreement: (i) all Contracts that contain restrictions with respect mortgages, indentures, security agreements and other material agreements and instruments relating to payment the borrowing of dividends money by or extension of credit to the Company or any of its subsidiaries (other distribution than accounts payable, accrued expenses, customer advances and similar items in respect the ordinary course of business that might be deemed the extension of credit) or the guarantee by the Company or any of its subsidiaries of the Membership Units indebtedness of any person where the amount of such borrowed money, credit extension or other Equity indebtedness exceeds $25,000 individually; (ii) employment agreements, consulting agreements and commitments with any officer, employee or member of the Company;
(ii) 's or any Contract that by of its terms requires the payment by or on behalf subsidiaries' Board of the Company in excess of $100,000 per annum or the delivery Directors not cancelable by the Company or one of goods its subsidiaries, as the case may be, on not more than 90 days' notice and without liability or services with a fair market value in excess of $100,000 per annum financial obligation or provides for the Company to receive which involve payments in excess of $100,000 per annum;
25,000; (iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) agreements, orders or advance to (other than travel and entertainment advances to the employees of commitments not cancelable by the Company extended in or one of its subsidiaries, as the Ordinary Course of Business)case may be, on not more than 90 days' notice and without liability or investment in, any Person financial obligation for the purchase by the Company or any agreement relating to the making one of any such loan, advance its subsidiaries of supplies or investment finished products exceeding $50,000 per year; (iv) agreements or commitments for capital expenditures involving payments in excess of $25,000;
(iv) 25,000 for any Contract that (i) requires the Company to purchase any product single item or service in excess of $100,000 from a third party or (ii) requires that in the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
aggregate; (v) any Contract agreements that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to restrict the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company 's or any successor thereto from engaging or competing in any manner, in any location or of its subsidiaries' ability to compete in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area region or during would so limit the Company, any period of time;
its subsidiaries, or the Surviving Corporation or any of its subsidiaries after the Effective Time; (xixvi) all except as contemplated in Section 2.9 with respect to Company Options set forth in Section ------- 3.2(b) in the Company Disclosure Schedule, agreements or plans, including any ------ stock option plan, stock appreciation right or stock purchase plan, any of the benefits of which will be accelerated or the value of which will be calculated by the occurrence of any of the transactions contemplated by this Agreement, the Transaction Option Agreement or the Stockholders' Agreements; (vii) agreements, contracts and commitments other than those described in the foregoing clauses (i) employment through (vi) which in any case involve payments or receipts of more than $100,000 per year and which are not cancelable on not more than 90 days' notice and without liability or financial obligation; (viii) agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) pursuant to which the Company is a party or any of its subsidiaries manufactures products for sale by third parties (i.e. OEM or private labeling agreements); (ix) indemnification agreements or subrogation agreements other than those contemplated in the Company Charter Documents, licenses entered into or warranties given in the ordinary course of business and similar ordinary course of business undertakings; (x) agreements with U.S. or foreign distributors; and (xi) agreements, contracts and commitments which are currently effective and which are not cancellable without material penalty have been, or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate as of the Companydate of this Agreement will be, for an amount in excess required to be filed by the Company or any of $100,000, individually (in its subsidiaries with the case of a lease, per annum) or $150,000 in SEC pursuant to the aggregate (in the case of a lease, for the entire term requirements of the leaseExchange Act and the rules and regulations thereunder (the items in (i) through (xi) above being, not including any option termcollectively, the "Material Contracts"); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).. ------------------
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and has heretofore furnished to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, Parent a complete and correct copy of each written Material Contract (unless any such Material Contract has not been reduced to writing, in which case the Company has provided to Purchaser a complete and a correct written description of each verbal thereof). Each such Material Contract is set forth identified in Section 4.10(a) 3.13 of the Company Disclosure Schedule.
(c) Each Schedule is a valid and binding ------------ obligation of the Company or one of its subsidiaries, as the case may be, and is in full force and effect without amendment, except where not being a valid and binding obligation or in full force and effect without amendment would not have a Material Adverse Effect on the Company. The Company or one of its subsidiaries, as the case may be, has performed, and to the Company's and each of its subsidiaries' knowledge, each other party to any such Material Contract has performed, in all material respects, the obligations required to be performed by it under the Material Contracts, neither the Company nor any of its subsidiaries is, and to the Company's and each of its subsidiaries' knowledge, no other party to any such Material Contract is (i) valid and binding on with or without lapse of time or the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (giving of notice, or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicableboth), between in material breach or default thereunder, and to the Company, on one hand, 's and the other parties thereto, on the other hand, with respect to the subject matter thereof. No each of its subsidiaries' knowledge no event or circumstance has occurred thatwhich, with after notice or lapse the passage of time or both, would constitute an event of a material default under any such Material Contract or result in a termination thereof impair the Company's or would cause or permit the acceleration or other changes any of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all subsidiaries' material respects, and the Company has not received any notice of termination or intent to terminate by any party to rights under any Material Contract, or give to any person rights of termination, amendment, acceleration or cancellation of the Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Agfa Corp)
Material Contracts. (a) Except as set forth in Section 4.10(a) 4.16 of the Company Disclosure Schedule sets forth a trueLetter, complete and correct list of each as of the following Contracts date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) material contract" (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) contract or instrument relating to Financial Indebtedness with a principal amount in excess of $1,000,000 or relating to any interest rate, currency or commodity derivatives or hedging transactions for which the aggregate exposure is reasonably expected to be in excess of $1,000,000;
(iii) contract to which the Company is a party or by which that materially restricts the Company is bound and from engaging or competing in any line of business or in any geographic area, or which have not been entirely fulfilled or performed (such Contracts, collectively, would so restrict the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution Company following a change in respect of the Membership Units or other Equity control of the Company;
(iiiv) contract with any Contract Governmental Authority currently in effect that by its terms requires the payment by or on behalf of the Company generated annual revenues in excess of $100,000 per annum 1,000,000 in the most recently completed fiscal year;
(v) contract for the sale or purchase of any real property, or for the delivery by sale or purchase of any tangible personal property (excluding sales in the Company ordinary course of goods or services with a fair market value business) in an amount in excess of $100,000 per annum 5,000,000 within the past five (5) years;
(vi) contract relating to settlement of any administrative or provides for judicial proceedings within the Company to receive payments past three (3) years that results in the payment of monetary damages in excess of $100,000 per annum1,000,000, excluding payments made through insurance proceeds;
(iiivii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course contract relating to any single or series of Business) or advance to (other than travel and entertainment advances to the employees of related capital expenditures by the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment its Subsidiaries in excess of $25,0003,000,000 within the past three (3) years;
(ivviii) any Contract that (i) requires joint venture agreement to which the Company to purchase or any product of its Subsidiaries is a party and has an equity ownership interest;
(ix) contract (A) providing for the disposition or service acquisition of any assets, business, securities or otherwise outside the ordinary course of business by the Company or any of its Subsidiaries or for consideration in excess of $100,000 from a third party 1,000,000, or (iiB) requires that pursuant to which the Company deal exclusively with or any of its Subsidiaries has any ownership interest in any other person or other business enterprise, other than other Subsidiaries of the Company, that would reasonably be expected to be material to the Company and its Subsidiaries, taken as a third party whole, in each case other than contracts for transactions that have closed and non-binding letters of intent following which there is no related activity thereto;
(x) license, sublicense, development agreement, or other agreement under which the Company or any of its Subsidiaries has granted or received any rights in any Intellectual Property Rights (other than non-exclusive licenses or other rights granted to suppliers and customers in connection with the sale or purchase manufacture of any product or service;
Company products in the ordinary course of business), in each case (vA) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is are material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and its Subsidiaries; or (B) that require recurring payments of more than $1,000,000 per year; in each case other than licenses to commercial off-the-shelf software available for a fee of not otherwise disclosed more than $100,000;
(xi) contract with the ten largest customers and the ten largest suppliers of the Company, as measured by the dollar amount of purchases therefrom or thereby, during the most recently completed fiscal year; or
(xii) contract in connection with any acquisition or disposition entered into since January 1, 2011 pursuant to which the Company has any continuing "earn-out" or other contingent payment obligations. Each contract of the type described in this Section 4.10(a)4.16 is referred to herein as a "Company Material Contract."
(b) The Neither the Company nor any Subsidiary of the Company is or is alleged to be in material compliance with breach of or default under the terms and provisions of each any Company Material ContractContract where such breach or default would have, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The 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 have, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company and, to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, except as applicable), between the Company, on one handwould not have, and would not reasonably be expected to have, individually or in the other parties theretoaggregate, on the other handa Company Material Adverse Effect; provided that (i) such enforcement may be subject to applicable bankruptcy, with respect to the subject matter thereof. No event or circumstance has occurred thatinsolvency, with notice or lapse of time or bothreorganization, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out moratorium or other similar type Laws, now or hereafter in effect, relating to creditors' rights generally and (ii) equitable remedies of payments) or noncompetition agreementspecific 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.
Appears in 1 contract
Sources: Merger Agreement (Nortek Inc)
Material Contracts. (a) Section 4.10(a) As of the Company Disclosure Initial Closing Date, Schedule sets forth 5.10 contains a true, complete and correct accurate list of each of the following Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):of:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity 30 largest customers of the Company, based on revenues for the year 2003 through July 31, 2003, which made up 58.7% of the revenues of the Company during such period;
(ii) any each Contract that was not entered into by its the Company in the ordinary course of business and that involves expenditures or receipts in excess of $150,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the Company's ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $100,000 and with terms requires of less than one (1) year);
(iv) each joint venture, partnership, and other Contract involving a sharing of profits, losses, costs or liabilities by the payment Company with any other Person;
(v) each Contract containing covenants that in any way purport to restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business or to compete with any Person, or to solicit any Person;
(vi) each power of attorney with respect to the Company that is currently effective and outstanding;
(vii) each Contract for capital expenditures by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum100,000;
(iiiviii) all Contracts involving a loan (each material written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company, other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000business;
(ivix) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any each Contract under which the Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness or under which the Company has imposed (or may impose) a security interest or other Lien upon any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect 's assets to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementsecure indebtedness;
(x) all Contracts each employment, severance, management, consulting and other Contract involving any resolution compensation for services rendered or settlement to be rendered, in each case involving payments of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datemore than $125,000 per year;
(xi) any each satellite transponder lease or other Contract limiting or restraining for the Company or any successor thereto from engaging or competing in any manner, in any location or in any businessprovision of fixed satellite services;
(xii) all Affiliate Contractseach terrestrial services or Internet services Contract;
(xiii) any Company IP Agreements as well as any each license agreement or distributor, dealer, sales representative or other sales agency Contract under which the Company is a party providing for the license involving annual payments in excess of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee$100,000;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into not made in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line ordinary course of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation Company; and
(xv) each amendment, supplement, and modification (whether oral or written) in respect of any of the business of foregoing, except as would not individually or in the Company and not otherwise disclosed pursuant aggregate, reasonably be likely to this Section 4.10(a)result in a Material Adverse Effect.
(b) The Company Each Contract required to be identified in Schedule 5.10 is in material compliance with the terms a valid and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding agreement of the Company Disclosure Schedule.
(c) Each Material Contract and is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties theretoCompany is entitled to receive all benefits thereunder. Neither of the Company nor, on the other hand, with respect to the subject matter thereof. No Company's knowledge, any other party thereto is in default in any material respect under the terms of any Contract required to be identified in Schedule 5.10, nor has any event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event any material default or give others any rights of default under any Material Contract termination, amendment or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit cancellation thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Note Purchase and Revolving Credit Agreement (Rare Medium Group Inc)
Material Contracts. (a) Section 4.10(aSet forth in Schedule 4.13(a) of the Company Disclosure Schedule sets forth is a true, complete and correct list of each of the following Contracts to which the Company is a party or by which the Company it or any of its properties or assets is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):bound:
(i) all Contracts that contain restrictions with respect each power of attorney from or to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires each Contract, commitment or arrangement relating to the payment by or on behalf acquisition of substantially all of the assets or capital stock of any business enterprise;
(iii) each Contract under which the Company is or would reasonably be expected to become obligated to pay in excess of $100,000 per annum 20,000 in respect of deferred or conditional purchase price (other than ordinary trade terms), indemnification obligations, purchase price adjustments or otherwise;
(iv) each partnership or joint venture Contract;
(v) each Contract limiting the delivery by the Company right of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive engage in or compete with any Person in any business or in any geographical area;
(vi) each management or consulting Contract that requires the Company to make payments in excess of equal to more than $100,000 20,000 per annum;
(iiivii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances each Contract with respect to the employment, severance, retention, compensation or termination of any directors, officers, managers, employees or consultants involving the payment of more than $50,000 per annum, and each change of control agreement with any of the Company extended in the Ordinary Course directors, officers, employees or consultants of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(viviii) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceeach collective bargaining agreement;
(viiix) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the each Contract with respect to Company Debt having outstanding principal amount in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution each fidelity or settlement of any actual surety bond or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datecompletion bond;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing each lease of personal property having a value individually in any manner, in any location or in any businessexcess of $20,000 per annum;
(xii) all Affiliate Contractseach Contract or commitment relating to future capital expenditures and involving future payments or receipts in excess of $20,000 per year;
(xiii) any Company IP Agreements as well as any each Contract under which or commitment relating to the Company is a party providing for disposition of assets outside the license ordinary course of or settlement business consistent with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseepast practice;
(xiv) any each Contract concerning providing for the acquisition, disposition, occupancy, management distribution of product by or operation on behalf of any Real Property owned, leased or used by the CompanyCompany providing for annual payments in excess of $50,000 and which cannot be terminated on less than one hundred and twenty (120) days’ notice without penalty;
(xv) all collective bargaining agreements entered into by each Contract or series of Contracts (not otherwise required to be disclosed in Schedule 4.13(a)) involving payments to or from the CompanyCompany equal to more than $25,000 per annum or more than $50,000 in the aggregate and which cannot be terminated on less than one hundred and twenty (120) days’ notice without penalty;
(xvi) any each other material Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) pursuant to which the Company is a party or by which the Company is bound having a term longer than twelve (12) months and which are cannot cancellable without material penalty or without more be terminated on less than ninety one hundred and twenty (90120) days’ notice; andnotice without penalty;
(xvii) each Contract (including outstanding purchase orders) with Material Customers and Material Suppliers;
(xviii) each material Contract relating to Intellectual Property of the Company and material Intellectual Property of third parties licensed or sublicensed to or used by the Company, including each material Contract relating to the payment of royalties or other payments to or from third parties in respect thereof;
(xix) each Contract with any Governmental Authority;
(xx) any other Contract that is or could reasonably be expected to purchase, lease or otherwise acquire be material to the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate Business of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) each amendment, supplement or modification in respect of any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing Contracts.
(b) The Company is Contracts required to be set forth in material compliance Schedule 4.13(a), together with the terms Real Property Leases, are referred to herein as the “Material Contracts.” The Company and provisions the Stockholders have delivered to Buyer a true and complete copy or, in the case of oral Contracts, a written summary, of each of the Material ContractContracts. The CompanyEach of the Material Contracts is, and to shall be upon the Knowledge Closing (without requiring the Consent of any third party), in full force and effect and a legally valid and binding agreement of the Company, and, to the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachSeller’s Knowledge, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and against the other parties thereto, on and there is no default or breach by the other handCompany, with respect or, to the subject matter Seller’s Knowledge, any other party, in the timely performance of any obligation to be performed or paid thereunder or any other material provision thereof. No , and no event or circumstance has occurred thatwhich, with notice or lapse of time or bothtime, would constitute an event of such a default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderbreach. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and Neither the Company nor, to the Seller’s Knowledge, any other party has not received repudiated any notice provision of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for . Each Material Contract that requires the deferred purchase price of property, goods or services, whether connected or not to the acquisition Consent of any business (earn-out Person in connection with this Agreement or other similar type any of payments) or noncompetition agreementthe transactions contemplated hereby is appropriately identified as such on Schedule 4.13(b).
Appears in 1 contract
Sources: Asset Purchase Agreement (Unique Fabricating, Inc.)
Material Contracts. (a) Section 4.10(aSchedule 3.11(a) of lists all Contracts relating directly to the Company Disclosure Schedule sets forth or the Business to which Company or Seller is a true, complete party and correct list of each which falls within any of the following Contracts to which the Company is categories (each a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):
): (i) all material Contracts that contain restrictions with respect not entered into in the ordinary course of business pursuant to payment of dividends which annual payments to or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of from the Company in excess of $100,000 per annum 50,000 are, or are reasonably anticipated to become, due and payable pursuant to the delivery by terms of such Contract; (ii) leases of real property (excluding the Company of goods or services with a fair market value lease for the property located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇); (iii) Contracts relating to any outstanding commitment for capital expenditures in excess of $100,000 per annum 50,000; (iv) indentures, mortgages, promissory notes, loan agreements, guarantees, letter of credit or provides other agreements or instruments of Company or commitments for the borrowing or the lending by Company to receive payments of amounts in excess of $100,000 per annum;
50,000 or providing for the creation of any charge, security interest (iii) all Contracts involving excluding a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) security interest that is a Purchase Money Security Interest), encumbrance or advance to (other than travel and entertainment advances to the employees lien upon any of the Company extended in assets of the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
Company; (v) any Contract non-competition agreement or any other agreement or obligation that relates purports to an acquisition limit in any respect the manner in which, or divestiture of material assets that contains covenantsthe localities in which, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
Business may be conducted; (vi) any Contract under which that would prohibit or materially delay the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset consummation of the Company, other than a Permitted Encumbrance;
Transactions; (vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
Contract with any Affiliate; (viii) any bonds contract with a customer of the Business with revenues of greater than $300,000 over the twelve month period immediately preceding the date hereof or Contracts of Guarantee anticipated in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
twelve month period following the date hereof; and (ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is contract with a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material supplier to the Company, other Business with expenses payable of greater than any such agreement entered into $150,000 over the twelve months period immediately preceding the date hereof or anticipated in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which twelve month period following the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)date hereof.
(b) The Company is Except as set forth in material compliance with the terms and provisions of Schedule 3.11(b), each Material Contract. The Company, and to the Knowledge of the CompanyMaterial Contracts were entered into in a bona fide transaction in the ordinary course of business and is legal, the other party to any Material Contract valid, binding and enforceable upon Company or Seller and in full force and effect and there is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true: (A) any existing uncured material breach or default by Company or Seller or, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company Seller’s Knowledge, by any other party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other handor (B) any event which, with respect to the subject matter thereof. No event or circumstance has occurred that, with after notice or lapse of time or both, would constitute an event of a material default under by Seller or Company or, to Seller’s Knowledge, by any Material Contract other party, or result in a termination thereof right to accelerate or would cause terminate or permit the acceleration or other changes of any right or obligation or the result in a loss of any benefit thereunder. The material rights of Company or Seller.
(c) Except as provided in Schedule 3.11(c), (i) there is no Contract (not to compete or otherwise), commitment, judgment, injunction, order or decree to which Company is a party or otherwise binding upon Company which has no reason to believe or may have the effect of prohibiting the Transactions or impairing the material assets of the Company or the value thereof in any party to any Material Contract will not fulfill its obligations thereunder in all material respects, respect and the (ii) Company has not received entered into any notice Contract that materially restricts the providing of termination services related to the Business or intent to terminate by any party to any Material Contractotherwise materially restricts the conduct of the Business.
(d) The Company has no Liability for Except as set forth on Schedule 3.11(d), neither this Agreement nor the deferred purchase price Transactions contemplated by this Agreement, including the assignment to Seller, by operation of propertylaw or otherwise, goods or services, whether connected or not to the acquisition of any business Contracts, will result, under the terms of any Contract, in (earni) Buyer or Company granting to any third party any right to or with respect to any Intellectual Property owned by, or licensed to, Buyer or Company, (ii) Buyer or Company being bound by, or subject to, any non-out compete or other similar type restriction on the operation or scope of paymentsthe Business, or (iii) Buyer or noncompetition agreementCompany being obligated to pay any royalties or other amounts, that individually or in the aggregate would be material, to any third party in excess of those payable by Seller upon Closing.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a4.08(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of Schedules lists each of the following Contracts to which of the Company is a party or by which any Company Subsidiary (together with all leases listed in Section 4.10(e) of the Company is bound and which have not been entirely fulfilled or performed (Disclosure Schedules, all such ContractsContracts required to be so listed, collectively, the “Material Contracts”):
(i) all Contracts each Contract that contain restrictions with respect to payment expressly limits or restricts the ability of dividends the Company or any other distribution Company Subsidiary to compete or otherwise to conduct the Business as presently conducted in respect of any material manner or place, except those restrictions imposed under the Membership Units Gaming License or other Equity of the Companyany applicable restrictions imposed by applicable Laws;
(ii) any each Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or any Company Subsidiary requiring performance by any party more than one (1) year from the delivery Signing Date and which cannot be cancelled by the Company of goods without penalty or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumwithout more than one hundred eighty (180) days’ notice;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any each Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining obligates the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect Subsidiary to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for pay an amount in excess of $100,000250,000 during any twelve (12)-month period after the Signing Date;
(iv) each Contract relating to Indebtedness (including guarantees, individually letters of credit, comfort letters and sureties or other bonds) of the Company or any Company Subsidiary;
(v) each Contract that relates to the sale of any of the Company’s or any Company Subsidiary’s assets, other than in the case ordinary course of a lease, per annum) business or for consideration in excess of $150,000 in the aggregate (in the case of a lease, for the entire term 500,000 or that contains any ongoing obligations of the leaseCompany or any Company Subsidiary;
(vi) each Contract that relates to capital expenditures or other purchase of any materials, not including supplies, equipment, other assets or properties, or services that requires an annual expenditure by the Company of more than $250,000 for any option termproject or series of related projects (or groups of related Contracts therefor);
(vii) each Contract that creates a joint venture, limited liability company or partnership;
(viii) each Contract between the Company or any Company Subsidiary, on the one hand, and Seller or any Related Party of Seller (other than the Company or any Company Subsidiary), on the other hand;
(ix) each collective bargaining agreement or other Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound;
(x) each Contract that grants any Person any (A) exclusive license, supply, distribution or other rights, (B) exclusive rights to purchase any Company products, or (C) any “most favored nation” rights;
(xi) each settlement agreement that has ongoing obligations; and
(xxixii) each Contract with any other Contract that is material Governmental Authority, including any redevelopment agreement, agreement conferring Tax benefits to the operation Company, and any Tax increment financing agreements or related arrangements. Notwithstanding the above, Material Contracts shall not include any of the business following: (A) Organizational Documents; (B) Contracts relating to commercial “off the shelf” or “shrink-wrap” software; (C) Contracts relating to employee health or welfare benefits, including those relating to the administration of employee health or welfare benefits, which are listed in Section 4.19(a) of the Disclosure Schedule; (D) Contracts which, by their terms, are terminable by the Company within thirty (30) days without penalty; and not otherwise disclosed pursuant (E) Contracts relating to this Section 4.10(a)trade payables incurred in the ordinary course of business consistent with past practices.
(b) The Company is in material compliance with the terms True and provisions correct copies of each Material Contract have been or, in the case of Contracts entered into after the Signing Date will be, made available to Buyer. Neither the Company nor any Company Subsidiary is in breach of, or default under, any Material Contract that could reasonably be expected to result in a material loss to the Company or any Company Subsidiary, and, to the Knowledge of Seller, as of the Signing Date, no other party to a Material Contract is in breach of, or default under, any Material Contract that could reasonably be expected to result in a material loss to the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received any written notice alleging a default or breach under any such Material Contract, except where such default or breach, individually or in the aggregate, has not resulted in or would not reasonably be expected to have a Material Adverse Effect. The CompanyEach Material Contract is valid, binding and enforceable on the Company or a Company Subsidiary in accordance with its terms, and to the Knowledge of the CompanySeller, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect except to the subject matter thereof. No event extent that (i) the failure to be so valid, binding or circumstance enforceable, individually or in the aggregate, has occurred thatnot resulted and would not be reasonably expected to have a Material Adverse Effect or (ii) such validity, with notice binding or lapse enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar applicable Laws affecting creditors’ rights generally and by general principles of time or both, would constitute an event equity (regardless of default under any Material Contract or result whether enforceability is considered in a termination thereof Proceeding at law or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractequity).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Leucadia National Corp)
Material Contracts. (a) Section 4.10(a) 3.14 of the Company Disclosure Schedule sets forth contains a true, complete and correct list of each all Contracts of the following Contracts types described below that are currently in effect with respect to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):any Subsidiary:
(i1) all employment and consulting Contracts or Contracts providing for severance, retention or change of control payments to employees or consultants;
(2) all Contracts that contain restrictions with respect to payment (or group of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Businessrelated Contracts) or advance options to sell, license (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), as licensor) or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
lease (ivas lessor) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which Company or any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company its Subsidiaries in excess of $50,000;
(viii) any bonds or Contracts 500,000 per year, except for sales of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (inventory and other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into sales in the Ordinary Course of Business;
(xvii3) any all Contracts with any Governmental Authority (or group of related Contracts) pursuant to which the Company is a party;
(xviii) or any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all its Subsidiaries (i) employment agreements possesses or uses, or has agreed to acquire, license (excluding, for certaintyas licensee) or lease (as lessee), any employees who are employed at will) property or asset and (ii) Contracts with independent contractors is required to make payments, accrue expenses or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount incur charges in excess of $100,000500,000 per year;
(4) all Contracts (or group of related Contracts), individually (plans or programs pursuant to which payments, or an acceleration of or increase in the case benefits, may be required upon or after a change of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term control of the lease, not including Company or any option term); andof its Subsidiaries;
(xxi5) any other Contract that is material to (or group of related Contracts other than purchase orders entered into in the operation Ordinary Course of Business) the business performance of which involves payment or rebates by the Company and not otherwise disclosed pursuant to this Section 4.10(a)or any of its Subsidiaries of consideration in excess of $500,000 per year; or
(6) Contracts (or group of related Contracts) under which a Person (other than the Company or any Subsidiary) is advanced or loaned an amount exceeding $250,000.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and has heretofore made available to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A Buyer a true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding Contracts described above, each as in effect on the Company party date hereof, and all amendments and supplements thereto in accordance with its respective terms and (ii) in full force and effectall waivers thereunder. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between Neither the Company, on one handany of its Subsidiaries nor, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No Company's Knowledge, any other party is in default under, or in breach or violation of, nor has an event occurred that (with or circumstance has occurred thatwithout notice, with notice or lapse of time or both, ) would constitute an event a default by the Company or any of default its Subsidiaries under any material Contract, other than such defaults, breaches and violations as would not have a Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAdverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSchedule 5.12(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each all of the following Contracts to which the Company is (each a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts“Material Contract” and, collectively, the “Material Contracts”):) to which the Company or any of its Subsidiaries is a party or by which any of them is bound (excluding any Contract covered by Section 5.13) and which:
(i) all Contracts that contain restrictions with respect involve payments of more than $1,000,000 per year and relate to payment the borrowing of dividends money or to mortgaging, pledging or otherwise placing a Lien on any of the assets of the Company or any of its Subsidiaries, other distribution in respect of the Membership Units or other Equity of the Companythan Permitted Exceptions;
(ii) any Contract that by its terms requires the payment by are for joint ventures, partnerships or on behalf other similar arrangements involving a sharing of profits, losses, costs or liabilities of the Company or any of its Subsidiaries with any other Person;
(iii) provide for severance, retention, change of control or other similar payments involving payments in excess of $100,000 per annum 1,000,000;
(iv) constitute license or royalty agreements involving expected payments of more than $500,000 in any twelve months covered by such license or agreement;
(v) constitute a lease or agreement under which it is a lessee of, or holds or operates any personal property owned by any other Person, for which the delivery annual rent exceeds $100,000;
(vi) impose any restrictions upon the ability of the Company or any of its Subsidiaries or any of their respective Affiliates from freely engaging in their respective businesses anywhere in the world;
(vii) constitute a standstill or similar agreement pursuant to which a party has agreed not to acquire assets or securities of any other party or any of its Affiliates;
(viii) constitute a guaranty of any obligation of any Person (other than the Company or its Subsidiaries);
(ix) relate to the supply, manufacturing, distribution, marketing, advertising or promotion of products or services involving in any such case payments by the Company or its Subsidiaries of goods more than $5,000,000 per year (other than purchases made pursuant to purchase orders in the Ordinary Course of Business);
(x) relate to the supply of products or services with or sales by the Company or its Subsidiaries involving in any such case payments to the Company or its Subsidiaries of more than $5,000,000 per year (other than sales made pursuant to purchase orders in the Ordinary Course of Business);
(xi) relate to the pending acquisition or sale of a business having a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business1,000,000;
(xii) constitute a Prior Purchase Agreement entered into by the Company or any of its Subsidiaries or any purchase agreement for the purchase of all Affiliate Contractsor substantially all the assets or securities or business of a Person that contains any indemnification provision that is currently in effect;
(xiii) contain any Company IP Agreements as well as any Contract under put, call or similar right pursuant to which the Company is or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a party providing for the license fair market value or purchase price of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other more than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee$500,000;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management constitute an employment agreement or operation option agreement with an executive officer of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by constitute a consulting agreement providing for payments thereunder in excess of $250,000 in the Companyaggregate;
(xvi) any Contract providing that the Company indemnify any constitute a contract under which a Person in an amount that would be material to (other than the Company, other than any such agreement entered into in the Ordinary Course of Businessits Subsidiaries or any of their respective customers) is advanced or loaned an amount exceeding $300,000;
(xvii) any Contracts constitute an agreement with any Governmental Authority Body, including any subcontracts to which the Company is or any of its Subsidiaries has been a party;party since January 1, 2007 pursuant to which payments thereunder would exceed $500,000 in the aggregate; or
(xviii) any Contracts that limitif terminated, in any material respectwould, the ability of the Company individually, have or reasonably be expected to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is have a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Material Adverse Effect.
(b) The Company Except as set forth in Schedule 5.12(b), each Contract listed on Schedule 5.12(a) is in material compliance with full force and effect and neither the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under Company nor any of its terms. The Company Subsidiaries has not received any written notice of any breach, default or event that with notice or lapse of termination time, or both, would constitute a default in any material respect by any Person the Company and its Subsidiaries under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract Except as set forth in Schedule 5.12(c), neither the Company nor any of its Subsidiaries is (i) valid and binding on with or without the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or the giving of notice, or both, would constitute an event of ) in breach or default in any material respect under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for Complete and correct copies of all Material Contracts listed on Schedule 5.12(a), together with all modifications and amendments thereto substantially changing the deferred purchase price business terms of propertysuch Contracts, goods or services, whether connected or not have been made available to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementParent.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.16(a) of the Company SALIC Disclosure Schedule sets forth contains a true, complete and correct list of each Contract in force as of the following Contracts date hereof (other than and excluding any Reinsurance Contract or Reserve Financing Contract (which are addressed in Section 3.21)) to which the any SALIC Group Company is a party or by under which any of the Company is bound and which have not been entirely fulfilled or performed SALIC Group Companies has material continuing obligations as of the date hereof that meets any of the following criteria (such Contractseach, collectively, the a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that requires expenditures by its terms requires the payment by or on behalf of the a SALIC Group Company involving consideration in excess of One Hundred Thousand Dollars ($100,000 per annum 100,000) in any twelve (12)- month period or the delivery by the SALIC Group Company or their Affiliates of goods or services with a fair market value in excess of One Hundred Thousand Dollars ($100,000 per annum or 100,000);
(ii) provides for the payments or goods or services to be received by a SALIC Group Company to receive payments in excess of One Hundred Thousand Dollars ($100,000 per annum100,000) in any twelve (12)-month period;
(iii) all Contracts involving relates to the incurrence by a loan (SALIC Group Company of any indebtedness, other than accounts receivable owing from trade debtors such Contracts entailing past or reasonably expected future amounts less than One Hundred Thousand Dollars ($100,000) in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000aggregate;
(iv) relates to the acquisition or disposition by a SALIC Group Company outside the Ordinary Course of Business of any Contract that material assets or any material business (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise) to the extent any product actual or servicecontingent material obligations of the SALIC Group Company thereunder remain in effect, other than transactions involving Investment Assets;
(v) grants a right of first refusal or first offer or similar right or materially restricts or limits a SALIC Group Company’s ability to freely engage in any Contract that relates to an acquisition business, compete with other entities, market any product or divestiture solicit employees or customers, or provides for “exclusivity” or any similar requirement, in each case in favor of material assets that contains covenants, indemnities or any Person other contractual obligations that could impose a Liability that is material to than the subject SALIC Group Company;
(vi) is a capital maintenance Contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the SALIC Group Companies or any capital maintenance Contract under or similar agreement pursuant to which the Company has SALIC Group Companies have agreed to contribute capital or surplus to any outstanding Indebtedness Person or evidencing an Encumbrance on guarantee the obligations of any property or asset of the Company, other than a Permitted EncumbrancePerson under any insurance Contract;
(vii) all Contracts under which is a collective bargaining agreement or other Contract with any Person (other than the Company) has directly labor organization, union or indirectly guaranteed Indebtedness of the Company in excess of $50,000association;
(viii) relates to the license or sublicense to a SALIC Group Company of any bonds material Intellectual Property or Contracts the license from a SALIC Group Company of Guarantee any material Intellectual Property, other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases;
(ix) is a written Contract with any Employee related to such Employee’s employment with any of the SALIC Group Companies;
(x) is a Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of profits, losses, costs or liabilities by the SALIC Group Companies with any other Person or relating to the formation, creation, operation, management or control of any partnership or joint venture in which respect of the Company acts as business of the SALIC Group Companies;
(xi) is an investment management agreement;
(xii) is a surety material indemnification agreement or guarantor guarantee in respect of the business of the SALIC Group Companies;
(xiii) is entered into with respect any Governmental Authority;
(xiv) provides for exclusivity or any similar requirement or includes a “most favored nation” provision;
(xv) contains change of control provisions;
(xvi) contains notification or termination provisions related to the insolvency of a Debtor, other than to the extent such provision would be unenforceable pursuant to Section 365(e)(1) of the Bankruptcy Code;
(xvii) requires any of the SALIC Group Companies to maintain a minimum rating or has a ratings trigger;
(xviii) provides for any obligation (fixed to loan or contingent) of contribute funds to, or make investments in, another Person;
(ixxix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of SALIC Intercompany Agreement or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeTerminating Intercompany Agreement;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit or the direct or indirect guarantee of any Contract to purchaseobligation for borrowed money of any Person or any other liability in respect of indebtedness for borrowed money of any Person, lease or otherwise acquire the right to ownin each case, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount involving liabilities in excess of One Hundred Thousand Dollars ($100,000, individually () or any direct or indirect guarantee of any obligation or liability in the case respect of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andBenefit Plan;
(xxi) any other Contract that is provides for a material to the operation or function of the business of the Company and not SALIC Group Companies to be outsourced to, or otherwise disclosed pursuant performed by, a third Person; or
(xxii) is an obligation to this Section 4.10(a)enter into any of the foregoing.
(b) The Company is in material compliance Except as set forth on Section 3.16(b) of the SALIC Disclosure Schedule, with the terms and provisions of respect to each Material Contract. The Company, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) each Material Contract is a valid and binding obligation of the applicable SALIC Group Company and, to the Knowledge of SALIC, as of the Companydate hereof, the each other party or parties thereto, in accordance with its terms and is in full force and effect, subject to any Material Contract the Bankruptcy and Equity Exceptions, and is not in breach or default under any enforceable against the applicable SALIC Group Company and, to the Knowledge of its terms. The Company has not received notice of any breachSALIC, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company other party thereto in accordance with its respective terms terms, subject to the Bankruptcy and Equity Exceptions, (ii) the applicable SALIC Group Company is not, and, to the Knowledge of SALIC, no other party thereto is, in full force and effect. Each Material Contract (default or description) sets forth breach in any material respect in the entire agreement and understanding (performance, observance or complete description fulfillment of any obligation, covenant or condition contained in each of the material terms, as applicable), between the Company, on one handMaterial Contracts, and the other parties thereto, on the other hand, with respect (iii) to the subject matter thereof. No event Knowledge of SALIC, there does not exist any event, condition or circumstance has occurred that, omission that would constitute such a default or breach (with notice or without lapse of time or notice or both); provided, would constitute an event of default under however, that this Section 3.16(b) does not apply to any Terminating Intercompany Agreement or any other Material Contract to be rejected or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason terminated pursuant to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractthis Agreement.
(dc) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not Prior to the acquisition date of any business (earn-out or other similar type this Agreement, copies of payments) or noncompetition agreementeach Material Contract have been made available to Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Section 4.10(a) Except as set forth on Schedule 3.18(a), as of the date of this Agreement, no SHE Company Disclosure Schedule sets forth is a true, complete and correct list of each party to or bound by any of the following Contracts to which the (each, a “Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material ContractsContract”):
(i) all Contracts any Contract with any vendor or supplier of a SHE Company involving expenditures of greater than $500,000 per year by the SHE Companies for the purchase of goods or services (provided, that contain restrictions with respect for any vendor where there is a master Contract between a SHE Company and such vendor, the Company shall not be required to payment of dividends or any other distribution in respect list each individual purchase order issued under such master Contract on Schedule 3.18(a), and such purchase orders shall be deemed part of the Membership Units or other Equity of the CompanyMaster Contract for purposes hereof);
(ii) any employment, contractor or consulting Contract with an employee or consultant or contractor that by its terms requires the would reasonably be expected to result in payment by or on behalf of the Company in excess of $100,000 per annum 180,000 in any year, whether or the delivery not such service provider is terminable by the a SHE Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumat will and without penalty;
(iii) all Contracts involving a loan (other any Company Lease Agreement or lease of personal property or equipment requiring payments of greater than accounts receivable owing from trade debtors $120,000 per year or $720,000 in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to aggregate over the employees life of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000lease;
(iv) any Contract that (i) requires Company IP Licenses or Company Outbound IP Licenses requiring payments of greater than $50,000 per year or $150,000 in the Company to purchase any product or service in excess aggregate over the life of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicelease;
(v) any Contract that relates relating to an acquisition capital expenditures and involving future payments in excess of $50,000 individually or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to $350,000 in the Companyaggregate when combined with all related Contracts for capital expenditures;
(vi) any Contract under which relating to the Company has disposition or acquisition of material assets or any outstanding Indebtedness or evidencing an Encumbrance on interest in any property or asset business enterprise outside of the Company, other than a Permitted Encumbranceordinary course of the business of the SHE Companies;
(vii) all any mortgages, indentures, guaranties, loan or credit agreements, promissory notes, security agreements or other Contracts under which any Person (other than the Company) has directly or indirectly guaranteed relating to Indebtedness of the Company in excess of $50,000SHE Companies;
(viii) any bonds Contract containing covenants or Contracts other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, nonsolicitation, “most favored nations” provisions, restrictions on the operation or scope of Guarantee in which the Company acts as a surety SHE Companies’ business or guarantor with respect to any obligation (fixed operations, or contingent) of another Personsimilar terms;
(ix) all Contracts involving any joint venture, partnership, strategic alliancestockholder, shareholders’ agreement, co-marketing, co-promotion, joint development voting trust or similar arrangementContracts;
(x) all Contracts involving any resolution or settlement of Contract with any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;Related Person; and
(xi) any other Contract limiting or restraining the Company or any successor thereto from engaging or competing not identified in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all clauses (i) employment agreements through (excluding, for certainty, any employees who are employed at willx) above that involves the expenditure or receipt by a SHE Company of $500,000 or more on an annual basis and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the is not cancelable by a SHE Company is a party and which are not cancellable without material penalty or without more than within ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is has made available to Buyer true, correct and complete copies of all Company Material Contracts, including each amendment, supplement or modification thereto, as in material compliance with effect on the terms and provisions of each Material Contractdate hereof. The CompanySHE Companies have performed in all material respects all obligations imposed on them in the Company Material Contracts, and no SHE Company is, and, to the Knowledge of the Company, the no other party to any Material Contract is not thereto is, in material breach or default under any thereunder, nor, to the Knowledge of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No has any event or circumstance has occurred that, that with notice or lapse of time or both, both would constitute an event a material breach or default thereunder. None of default under the parties to any Company Material Contract has terminated or given written or, to the Company’s Knowledge, oral notice of termination to any SHE Company of any such Company Material Contract or result written notice of any such party’s intention not to use a SHE Company’s products or services or to provide products or services to a SHE Company under any of the Company Material Contracts. Each Company Material Contract is valid and binding and in a termination thereof or would cause or permit full force and effect except to the acceleration extent that the same may be subject to the Laws of general application relating to bankruptcy, insolvency, reorganization and the relief of debtors and rules of Law governing specific performance, injunctive relief or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractequitable remedies.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Share Exchange Agreement (Nac Global Technologies, Inc.)
Material Contracts. (a) Section 4.10(a) of Schedule 3.15 to the Company Disclosure Schedule Letter sets forth a true, complete and correct list of all Contracts of each of the following Contracts types to which the Company is a party or by and under which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, has any express obligations to any Person continuing as of the “Material Contracts”):date of this Agreement:
(i) all Contracts that contain restrictions with respect any loan or security agreement relating to payment the borrowing or lending of dividends or any other distribution money by the Company in respect excess of the Membership Units or other Equity of the Companyfifty thousand Dollars ($50,000);
(ii) any Contract that by its terms requires the payment by or on behalf of agreement pursuant to which the Company is expressly committed to sell any of its assets or properties (other than inventory) to a Third Party for a sale price in excess of fifty thousand Dollars ($100,000 per annum 50,000) (excluding value added tax, sales tax or the delivery by any other similar taxes) in any one case or pursuant to which the Company has granted to a Third Party any option or preferential right to purchase any of goods its assets or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumproperties (other than inventory);
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance any guarantee pursuant to (other than travel and entertainment advances to the employees of which the Company extended in has expressly guaranteed the Ordinary Course obligations of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000a Third Party;
(iv) any Contract that (i) requires agreement pursuant to which the Company has expressly agreed not to purchase engage in or not to compete with any product or service Third Party in excess any line of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that business which is material to the Company;
(v) any agreement with the Seller or any of its Affiliates, irrespective of the content or value of such agreement;
(vi) any Contract under all areas of mutual interests agreements, purchase or sale agreements (other than with respect to production of Hydrocarbons in the Ordinary Course), partnership agreements (other than tax partnerships), joint venture and exploration or development program agreements relating to the Licences or by which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted EncumbranceLicences are bound;
(vii) all Contracts under which any Person (Hydrocarbons production sales or purchase, transportation, marketing, supply, exchange and processing agreements relating to the Licences other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability such agreements that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are terminable on upon not cancellable without material penalty or without more than ninety (90) days’ noticenotice without material penalty by the Company;
(viii) any contracts or agreements that could reasonably be expected to require capital expenditures by the Company in excess of one hundred thousand Dollars ($100,000) in any calendar year;
(ix) other than contracts governing the sale of Hydrocarbons, any contracts or agreements related to the Licences under which the Company has received in excess of one hundred thousand Dollars ($100,000) of revenues net of direct expenses in any calendar year;
(x) any contracts or agreements providing for a call upon, option to purchase or similar right under any agreements with respect to the Hydrocarbons from the Licences;
(xi) any contract or agreement with any labor union or employee association that relates to the Company’s employees (or any of them);
(xii) other than (x) this Agreement, (y) contracts or agreements governing the sale of Hydrocarbons or (z) the disposition in the Ordinary Course of equipment no longer suitable for Hydrocarbons field operation, any contract or agreement for, or that contemplates, the sale, exchange or transfer of any of the Company’s Participating Interest;
(xiii) any unit agreement and any operating agreement applicable to any Licence; and
(xxxiv) any Contract other agreement material to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate Business of the CompanyCompany as presently conducted, for an amount made other than in the Ordinary Course of Business and pursuant to which the Company is expressly committed to make future payments in excess of fifty thousand Dollars ($100,00050,000) (excluding value added tax, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) sales tax any other Contract that similar taxes) during any calendar year and which is material to the operation of the business of not cancellable by the Company without material penalty upon one year’s notice or less, (the foregoing Contracts being referred to collectively as the “Material Contracts” and not otherwise disclosed pursuant to this Section 4.10(aindividually as a “Material Contract”).
(b) The Except as disclosed on Schedule 3.15(b) to the Disclosure Letter, except as would not have a Material Adverse Effect:
(i) the Company is in material compliance with the terms and provisions of each has not violated or breached, or committed any default under such Material Contract. The CompanyContracts and, and to the Knowledge of the CompanySeller, no other party to such Material Contract has violated or breached, or committed any default under a Material Contract;
(ii) neither entering into, nor compliance with, nor completion of this Agreement by the other Company will result in a material breach of or, to the Knowledge of the Seller, permit a party thereto to terminate or vary, or result in any material Encumbrance, under any Material Contract;
(iii) the Company has not received or given written notice as of the date of this Agreement that the Company is in material default under any Material Contract, which default remains unremedied as of the date hereof;
(iv) each of the Material Contracts is in full force and effect; and
(v) the Company has not received or given written notice as of the date of this Agreement that a party to any Material Contract is not in breach intends to exercise any right of cancellation, termination, acceleration or default modification under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any such Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Prior to the date hereof, the Seller has furnished to the Purchaser a true and complete copy of each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties all amendments thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.17(a) of the Company Disclosure Schedule sets forth a true, complete and correct list lists as of the date hereof each of the following Contracts contracts and agreements of the Sellers (but only to which the Company is extent such contracts and agreements relate primarily to the Business and are to be transferred to the Purchaser hereunder), the Companies and the Subsidiaries (each such contract and agreement required to be listed on Section 3.17(a) of the Disclosure Schedule being a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, “Material Contract,” collectively the “Material Contracts”):
(i) all Contracts that contain restrictions with respect contracts and agreements relating to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides indebtedness for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan borrowed money (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended payables in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires all contracts and agreements that the Company deal exclusively with a third party in connection with the sale materially limit or purchase of any product or service;
(v) any Contract that relates purport to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, materially limit the ability of the any Company or Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xixiii) all contracts and agreements involving total annual payments in excess of $250,000;
(iiv) employment all material contracts and agreements (excluding, for certainty, any employees who are employed at will) that have a remaining term of one year or more and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are that cannot cancellable without material penalty or without more than be cancelled on notice of ninety (90) days’ notice; anddays or less without penalty;
(xxv) any Contract to purchase, lease or otherwise acquire the right to own, use agreement with any labor union;
(vi) any agreement that provides for an outstanding loan or lease advance (excluding advances for travel and entertainment expenses of any property directors or assets, including such Contracts entered into by an Affiliate officers of the Company, Companies or its Affiliates with respect to activities related to the Companies made in the Ordinary Course of Business and in accordance with customary policies for an such advances) in any amount in excess of $100,00020,000 to any director, individually officer or employee of the Companies;
(vii) all contracts (A) that provide for any severance obligation to any current employee or (B) that contain any change of control or similar provisions in respect of any employee, officer or director; but, expressly redacting any terms contained therein that discuss or are related to the case negotiation, documentation and consummation of a lease, per annumthe transactions contemplated by this Agreement and the Ancillary Agreements;
(viii) all guarantees or $150,000 in credit support contracts by the aggregate (in the case of a lease, Business for the entire term benefit of any Person;
(ix) all material Real Property Leases;
(x) all contracts relating to any material Owned Intellectual Property;
(xi) the kiosk license agreements with respect to kiosks located in Whistler, British Columbia;
(xii) (A) the Restated Management Agreement between Club Intrawest and Intrawest ULC, dated March 26, 2009 and (B) the Management Agreement between Villas at Club Intrawest Zihuatanejo, A.C. and Lodging Ovations Corp., Sucursal Mexico;
(xiii) those sub-management agreements set forth on Section 3.17(a)(xiii) of the leaseDisclosure Schedule;
(xiv) the Nineteenth Amended and Restated Master Declaration between Club Intrawest and Intrawest ULC, not including any option term)dated May 30, 2012; and
(xxixv) all contracts, excluding this Agreement and any other Contract that is timeshare purchase agreements, for acquisitions or dispositions (by merger, purchase or sale of assets or equity securities or otherwise) of material assets, as to which the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Business has continuing material obligations or material rights.
(b) The Company is Except as disclosed in material compliance with Section 3.17(b) of the terms and provisions of Disclosure Schedule, each Material Contract. The CompanyContract (i) is valid and binding on a Seller, a Company or a Subsidiary, as the case may be, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and to such Seller’s Knowledge, the Knowledge counterparties thereto, and is in full force and effect, and (ii) to the Sellers’ Knowledge, upon consummation of the Companytransactions contemplated by this Agreement, and except to the other party to extent that any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is consents set forth in Section 4.10(a3.05 of the Disclosure Schedule are not obtained, shall be in full force and effect without material penalty or other material adverse consequence as of immediately following consummation of the Closing (other than any limitations or restrictions arising in respect of the Purchaser and not contained within the contract). To the Sellers’ Knowledge and except as disclosed in Section 3.17(b) of the Company Disclosure Schedule, none of the Sellers, the Companies or any Subsidiary is in material breach of, or default under, any Material Contract to which it is a party. Correct and complete copies of each Material Contract have been made available to the Purchaser.
(c) Each Material Contract is (iSection 3.17(c) valid and binding on of the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) Disclosure Schedule sets forth the entire agreement and understanding (or complete description a summary of each category of Assumed Intracompany Payables as of the material termsdate of this Agreement, as applicable), between including the Company, on one hand, goods and services provided in respect thereof by the other parties thereto, on the other hand, with respect to the subject matter thereof. No event Sellers or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractapplicable Affiliates.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Purchase Agreement (Intrawest Resorts Holdings, Inc.)
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct accurate list of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which that fall within the Company is bound following categories and which have not been entirely fulfilled or performed existing as of the date hereof (such Contracts, collectively, the “Company Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any Contract for the purchase or sale of dividends or any other distribution in respect of the Membership Units services, equipment or other Equity assets (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by the Company and/or its Subsidiaries of $500,000 or more; or (2) gives rise to anticipated receipts of more than $500,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the CompanyCompany and/or its Subsidiaries of any material penalty;
(ii) any Contract that by its terms requires the payment by material partnership, joint venture or on behalf of the Company in excess of $100,000 per annum other similar agreement or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumarrangement;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement Contract relating to the making acquisition or disposition of any such loanmaterial business (whether by merger, advance sale of stock, sale of assets or investment in excess of $25,000otherwise) pursuant to which the Company has material ongoing obligations entered into within the three years prior to the date hereof;
(iv) any Contract that as obligor or guarantor relating to Indebtedness (i) requires the Company to purchase in either case, whether incurred, assumed, guaranteed or secured by any product or service in excess of asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service500,000;
(v) any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that relates materially restricts the ability of the Company or any of the Company’s Subsidiaries to an acquisition (A) compete in any line of business or divestiture geographic area or with any Person during any period of time after the Closing or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companyproperties;
(vi) any Contract under which to sell, lease, farmout, exchange or otherwise dispose of all or any part of the Oil and Gas Properties of the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbranceand its Subsidiaries;
(vii) all Contracts under which any Person (each Contract for the sale, purchase, exchange or other than disposition of Hydrocarbons produced from the Company) has directly Oil and Gas Leases or indirectly guaranteed Indebtedness ▇▇▇▇▇ of the Company in excess of $50,000and its Subsidiaries;
(viii) each Contract that contains any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Persondrilling commitments;
(ix) all Contracts involving each Contract for any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development material Derivative Transaction of the Company or similar arrangementany of its Subsidiaries;
(x) all Contracts involving any resolution joint development agreement, exploration agreement, participation, farmout, farm in or settlement program agreement or similar Contract (or series of any actual or threatened Action under which related Contracts) requiring the Company has or any obligation Subsidiary to make expenditures that would reasonably be expected to be in excess of (x) $1,000,000 in any calendar year or Liability that will continue after (y) $2,000,000 during the Closing Dateterm thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract limiting that provides for a “take-or-pay” clause or restraining any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of the Company or and its Subsidiaries per day over a period of one month (calculated on a yearly average basis) and for a term greater than 10 years, except for any successor thereto from engaging or competing in any manner, in any location or in any businessContracts that are terminable without penalty within 90 days;
(xii) all Affiliate Contractseach Contract that contains any standstill, “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal or any similar requirement or right in favor of any third party, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements or unit agreements affecting the business or the Oil and Gas Properties of the Company or any of its Subsidiaries;
(xiii) (A) any employment Contract pursuant to which a Company IP Agreements as well as Employee is entitled to receive annual base compensation in excess of $200,000, (B) any consulting Contract under pursuant to which an independent contractor is entitled to receive annual payments in excess of $200,000, (C) any severance Contract that provides for mandatory or potential severance payments by the Company is a party providing or any of its Subsidiaries in excess of $200,000 and (D) the form of any other Contract with any employee, officer, or director of the Company or any of its Subsidiaries that (x) contains any non-compete or non-solicitation covenants, (y) contains any change in control clause, or (z) modifies the at-will nature of the employment of any employee or otherwise requires advance notice for the license termination of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which Contract by the Company is currently a licenseeor any of its Subsidiaries;
(xiv) any Contract concerning with any staffing agency, temporary employee agency, third-party workforce provider, or professional employer organization to which the acquisition, disposition, occupancy, management Company or operation any of any Real Property owned, leased or used by the Companyits Subsidiaries is a party;
(xv) all collective bargaining agreements entered into by the Company;each Contract or group of related Contracts reasonably expected to result in Company Transaction Expenses of more than $100,000; and
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Companyconstitutes a seismic, other than any such data or geophysical license, agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)permit.
(b) The Each Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete a valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding agreement of the Company Disclosure Schedule.
(c) Each Material Contract or one of its Subsidiaries, and is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement , and understanding (or complete description none of the material terms, as applicable), between the Company, on one handany Subsidiary of the Company or, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event Company’s knowledge, any other party is in default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default breach under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes terms of any right or obligation or the loss of any benefit thereunder. The such Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract, except for any such defaults or breaches which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Merger Agreement (Talos Energy Inc.)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of 4.17 lists the following Contracts written contracts and other written agreements to which the Company or any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):party:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(iia) any Contract that by its terms requires the payment by agreement (or on behalf group of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides related agreements) for the Company lease of personal property to receive or from any Person providing for lease payments in excess of $100,000 350,000 per annum;
(iiib) all Contracts involving a loan any agreement (other than accounts receivable owing from trade debtors in or group of related agreements) for the Ordinary Course purchase or sale of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)raw materials, commodities, supplies, products, or investment inother personal property, any Person or any agreement relating to for the making furnishing or receipt of any such loan, advance services (i) which cannot be terminated without penalty upon 90 days or investment less prior written notice and (ii) which involve annual payments in excess of $25,000350,000;
(ivc) any Contract that agreement concerning a partnership or joint venture;
(id) requires the Company to purchase any product agreement (or service group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service250,000;
(ve) any Contract that relates to an acquisition or divestiture agreement for the employment of material assets that contains covenantsany individual on a full-time, indemnities part-time, consulting, or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company basis providing annual base compensation in excess of $50,000;
(viii) any bonds 150,000, other than agreements with a salesperson or Contracts customer service representative of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which Subsidiary of the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xviif) any Contracts agreement under which it has advanced or loaned in excess of $50,000 that is outstanding as of the date of this Agreement, to any of its directors, officers, and employees (other than loans or advances against commissions to salespersons or customer service representatives of the Company or any Subsidiary of the Company in the Ordinary Course of Business) or in connection with an acquisition by the Company or any Governmental Authority to of its Subsidiaries;
(g) any agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(h) any agreement under which the Company is or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $100,000 (other than loans or advances against commissions to salespersons or customer service representatives of the Company or a partySubsidiary of the Company in the Ordinary Course of Business);
(xviiii) any Contracts that limitagreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $250,000 or under which it has imposed a lien on any of its assets, tangible or intangible (other than liens permitted under the Company's existing senior credit facility); or
(j) any other agreement (or group of related agreements) the performance of which involves consideration from and after the date of this Agreement in excess of $500,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.17, whether or not set forth in Schedule 4.17 is referred to as a "COMPANY MATERIAL CONTRACT." The Company has made available to Parent a correct and complete copy of each Company Material Contract (as amended to date). With respect to each such agreement: (A) the agreement is legal, valid, binding, in any material respectfull force and effect and enforceable in accordance with its terms, except as to the ability effect, if any, of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excludingapplicable bankruptcy or other similar laws affecting the rights of creditors generally, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants rules of law governing specific performance, injunctive relief and other equitable remedies; (or similar arrangementsB) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of neither the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material nor to the operation of the business knowledge of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company any other party, is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handdefault, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, which with notice or lapse of time or both, would constitute an event of default under any Material Contract a breach or result in a termination thereof or would cause default, or permit termination, modification, or acceleration, under the acceleration or other changes agreement; and (C) neither the Company, nor to the knowledge of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company any other party, has not received repudiated any notice provision of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSchedule 3.13(a) of the Company Disclosure Schedule sets forth a true, correct and complete and correct list of each of the following Contracts all contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which the any Company Party is a party (or by intends to become a party) or to which the Company any of its assets or properties is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):bound:
(i) all Contracts that contain restrictions with respect to payment of dividends under which any Company Party is indemnified for or against any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company liability in excess of $100,000 per annum 50,000 or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Company Party is or could be obligated to indemnify any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(ii) under which any Company Party leases personal property from or to third parties under Capital Leases which involve rental payments of at least $25,000 per annum or under operating leases which involve rental payments of at least $50,000;
(iii) for the purchase or sale of products or other personal property or for the furnishing or receipt of services (A) which calls for performance over a period of more than one (1) year, (B) which involves payments of more than the $50,000 in the aggregate or (C) in which any Company Party has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any Person;
(iv) (A) granting representation, marketing or distribution rights or (B) relating to Intellectual Property (including, without limitation, license, franchise or similar agreements);
(v) under which any Company Party has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $50,000;
(vi) establishing or maintaining any partnership, joint venture or strategic alliance;
(vii) under which there is or may be imposed a security interest or other Lien on any of its assets, whether tangible or intangible, whose net book value or fair market value is in excess of $50,000 (other than the security interests or Liens granted in favor of the Purchaser and the Bank);
(viii) concerning any bonds confidentiality or Contracts non-solicitation obligations entered into outside the ordinary course of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personbusiness;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the any Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company Party is restricted from carrying on its business or any successor thereto part thereof, or from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of timePerson;
(xixx) all (i) employment agreements (excludingwith officers, for certaintydirectors, any employees who are employed at will) and (ii) Contracts with employees, consultants or independent contractors or consultants of any Company Party;
(or similar arrangementsxi) to resulting in the creation of any Lien (including any lease notifications) other than a Permitted Lien;
(xii) involving any Affiliates of any Company Party;
(xiii) under which the consequences of a default or termination could have a Material Adverse Effect;
(xiv) under which any Company is a party and Party will (A) receive aggregate payments from customers, (B) make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from any other Persons, in each case in excess of $50,000 per annum;
(xv) which are franchise agreements, including but not cancellable without material penalty or without more than ninety (90) days’ noticelimited to all master, area director and unit agreements; and
(xxxvi) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts not entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case ordinary course of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant on Schedule 3.13
(a) in response to this any of the foregoing clauses. All of the contracts, commitments, licenses, agreements, obligations or arrangements described in clauses (i) through (xvi) above, together with the Bank Credit Documents, the Tender Offer Documents, the real property leases, subleases, licenses and other interests described in Section 4.10(a)3.24, whether entered into prior to, on or after the Closing Date, and the Agreements with Officers, are collectively referred to herein as the "Material Contracts".
(b) The Company is in material compliance with the terms and provisions of Except as disclosed on Schedule 3.13(b), each Material Contract. The Company, and to the Knowledge Contract existing as of the Companydate hereof is a legal, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete valid and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) binding obligation of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding Parties that are party thereto, on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, enforceable against each of them in accordance with respect its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or similar laws relating to or limiting creditors' rights generally or by equitable principles relating to enforceability, and is in full force and effect. The parties to each Material Contract existing as of the subject matter date hereof are in substantial compliance with the terms thereof. No event , and no default or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under by any Material Contract or result in Company Party or, to the best knowledge of the Company Parties, any other party thereto exists thereunder.
(c) Except as set forth on Schedule 3.13(c), no Company Party is a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill contract, commitment, license, agreement, obligation or arrangement that restricts it from carrying on its obligations thereunder business or any part thereof, or from competing in all material respects, and the Company has not received any notice line of termination business or intent to terminate by with any party to any Material Contractother Person.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSchedules 3.18(a)(i)-(xiv) of the Company Disclosure Schedule sets forth a trueSchedules list each written or oral Contract (x) since January 1, complete and correct list of each of the following Contracts 2011 to which the Company or any of its Subsidiaries is a party or (y) by which the Company or any of its Subsidiaries or their respective properties or assets is currently bound with ongoing obligations (other than obligations solely as a result of ongoing confidentiality obligations) and identifies which have not been entirely fulfilled or performed subparagraph is applicable to such Contract (such Contracts, collectively, the contracts and agreements as described in this Section 3.18(a) being “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by (or on behalf group of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (related Contracts), other than accounts receivable owing from trade debtors in the Ordinary Course of Businessemployment Contracts, which is not terminable on less than ninety (90) or advance to (other than travel days’ notice and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual involves future obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than its Subsidiaries or its employees in a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company dollar amount in excess of $50,000;
(ii) any employment Contract (A) providing annual compensation in excess of $100,000, or (B) that it is not terminable at will on notice of thirty (30) days or less without payment of any severance;
(iii) any Contract that involves future obligations of the Company in excess of $50,000 with sales agents, sales representatives, sales brokers or distributors;
(iv) any partnership, joint venture agreement, development, joint development or similar arrangement which is material to the Company or its Subsidiaries taken as a whole;
(v) any Contract for the borrowing or lending of money and any guaranty agreement or other evidence of indebtedness, including Capitalized Lease Obligations;
(vi) any Contract granting any Person an Encumbrance on any of the material assets of the Company or any of its Subsidiaries;
(vii) any Contract involving a dollar amount in excess of $50,000 providing for the license of any Intellectual Property to or from the Company or any of its Subsidiaries;
(viii) any bonds or Contracts Contract involving a dollar amount in excess of Guarantee in which $50,000 containing any provisions requiring the Company acts as a surety or guarantor with respect to indemnify any obligation (fixed or contingent) of another Personother party thereto;
(ix) all Contracts involving any joint ventureContract pursuant to which the Company or any of its Subsidiaries or any current or future Affiliate of any of them is or would be restricted from conducting the business of the Company or any of its Subsidiaries or any current or future Affiliate of any of them in any material respect at any time, partnershipin any manner or at any place in the world, strategic allianceor the expansion thereof to other geographical areas, shareholders’ agreementcustomers, co-marketingsuppliers or lines of business, co-promotion, joint development or that grants the other party or any third person “most favored nation” or similar arrangementstatus, except for the following insofar as they do not impose the foregoing restrictions on the Company’s or any of its Subsidiaries’ right to conduct or expand their business (and only restrict such right with respect to the other party or parties thereto) (A) the Company’s employment agreements in the form previously furnished to Acquiror, (B) the Company’s standard independent contractor agreements in the form previously furnished to Acquiror and (C) the Company’s standard separation statement for departing employees substantially in the form previously furnished to Acquiror;
(x) all Contracts involving any resolution or settlement Contract of any actual character (contingent or threatened Action under otherwise) pursuant to which any employee or consultant is or may be entitled to receive any payment based on the revenues, earnings or financial performance or assets of the Company has or any obligation of its Subsidiaries or Liability that will continue after the Closing Datecalculated in accordance therewith;
(xi) any agency Contract limiting or restraining whereby the Company purports to grant a right to market or sell its products or any successor thereto from engaging agency Contract affecting the Company’s or competing in any mannerof its Subsidiaries’ exclusive right to develop, in any location market or in any businesssell its products;
(xii) all Affiliate Contractsany Contract pertaining to any customer of the Company or any of its Subsidiaries which represents more than 5% of the Company’s revenues in any of the last three (3) fiscal years or any Contract with an independent warehouse used by the Company or any of its Subsidiaries which is material to the Company or its Subsidiaries;
(xiii) any Company IP Agreements as well as any Contract under which Contracts that contain unlimited indemnification obligations by the Company is or any of its Subsidiaries or that does not contain a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, limitation on the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee's liability;
(xiv) Contracts with any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the CompanyGovernmental Authority;
(xv) all collective bargaining agreements entered into by Any Contract that relates to the Companysettlement of any Action or any legal proceeding;
(xvi) any Contract providing that with material suppliers to the Company indemnify or any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;its Subsidiaries; or
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material would be required to be filed with the operation of the business of SEC as an exhibit to a registration statement on Form S-1 if the Company and not otherwise disclosed pursuant to this Section 4.10(a)or such Subsidiary were registering securities under the Securities Act.
(b) The Company has made available to Acquiror true and complete copies of all Material Contracts and all amendments thereto. Each Material Contract (i) is in material compliance with valid and binding on the terms and provisions of each Material Contract. The CompanyCompany or the applicable Subsidiary, and as the case may be, and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect, enforceable against the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, against all third parties, in each case 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); and (ii) shall continue in full force and effect upon consummation of the transactions contemplated by this Agreement, enforceable against the Company or a Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, against all third parties, 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). None of the Company or any of its Subsidiaries is in breach of, or default (with or without the giving of notice, with lapse of time or both) under, any Material Contract. To the Knowledge of the Company, no other party to any Material Contract is not in breach or default under any thereunder, nor, to the Knowledge of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and does any condition exist that with the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, both would constitute an event of a default under by any such other party thereunder, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Contract or result in a termination thereof or would cause or permit the acceleration or Adverse Effect. No other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and has (i) notified the Company has not received that such other party intends to cancel or otherwise terminate such Material Contract or (ii) since December 31, 2013, taken any notice action or threatened to take any action, with respect to seeking a repayment of termination amounts paid to the Company or intent any of its Subsidiaries pursuant to terminate by such Material Contract or a reduction in fees or other payments that will become due to the Company or any party of its Subsidiaries pursuant to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct accurate list of each of the following Contracts to which the Company or any of its Subsidiaries is a party (which does not include any Company Benefit Plans, Shared Company Benefit Plans, Related Party Agreements or by which Intercompany Agreements) that fall within the Company is bound following categories and which have not been entirely fulfilled or performed are existing as of the date hereof (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect Real Property Lease which as of the Membership Units or other Equity date hereof requires an annual rent payment in excess of the Company$150,000;
(ii) any Contract that by its terms requires for the payment by purchase of services, equipment or on behalf of the Company in excess of $100,000 per annum or the delivery other assets (A) providing for annual payments by the Company of goods or services with a fair market value in excess its Subsidiaries of $100,000 per annum 150,000 or provides for more; or (B) giving rise to anticipated receipts by the Company to receive payments counterparty of more than $150,000 in excess of $100,000 per annumany calendar year;
(iii) all Contracts involving any Contract with a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees customer of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating its Subsidiaries which generates annual payments to the making of any Company or such loan, advance or investment in excess Subsidiary of $25,000150,000 or more;
(iv) any Contract that (i) requires the Company to purchase any product material partnership, joint venture or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceother similar Contract;
(v) any Contract that relates relating to an the acquisition or divestiture disposition of material any business (whether by merger, sale of stock, sale of assets that contains covenants, indemnities or other contractual otherwise) pursuant to which the Company or its Subsidiaries or the Business has continuing obligations that could impose a Liability that is material to in excess of $150,000 following the Companydate of this Agreement;
(vi) any trust indenture, mortgage, promissory note, loan agreement or other Contract under which for the Company has borrowing of money, any outstanding Indebtedness currency exchange, commodities or evidencing an Encumbrance on other hedging arrangement or any property or asset leasing transaction of the Companytype required to be capitalized in accordance with GAAP and any Contract as obligor or guarantor relating to Indebtedness, other than a Permitted Encumbranceany such arrangements exclusively among the Company and its Subsidiaries;
(vii) all Contracts under which any Person (other than Contract containing covenants expressly limiting the Company) has directly or indirectly guaranteed Indebtedness freedom of the Company or any of its Subsidiaries to compete with any Person in excess a product line or line of $50,000business or operate in any jurisdiction in a manner that is material to the business of the Company and its Subsidiaries, taken as a whole;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect Contract relating to any obligation (fixed swap, forward, futures, warrant, option or contingent) of another Personother derivative transaction;
(ix) all Contracts involving any joint ventureagency, partnershipdealer, strategic alliancesales representative, shareholders’ agreement, co-marketing, co-promotion, joint development marketing or other similar arrangementContract generating annual payments to the Company or its Subsidiary of $150,000 or more;
(x) all Contracts involving any resolution Contract pursuant to which (A) the Company or settlement any of its Subsidiaries is granted a right or license to any Intellectual Property of any actual other Person, other than (i) any non-exclusive licenses for commercially available off-the-shelf software for annual or threatened Action under which aggregate payments of no more than $150,000 that is not embedded into the software of any Product, (ii) licenses for Open Source Software, (iii) Contracts with employees, contractors or consultants of the Company has or any obligation of its Subsidiaries entered into in the ordinary course of business, substantially in the form of the Company’s or Liability that will continue after any of its Subsidiaries’ forms of proprietary information and invention assignment agreement or (iv) contractor agreement, copies of which have been provided to Purchaser, and nondisclosure agreements entered into in the Closing Dateordinary course of business, or (B) the Company or any of its Subsidiaries grants to any other Person any right or license with respect to any Intellectual Property, other than (i) customer agreements entered into in the ordinary course of business, substantially in the form of the Company’s or any of its Subsidiaries’ form of customer agreement, copies of which have been provided to Purchaser, (ii) Contracts where any license of any Intellectual Property is incidental to such agreement and/or where such license is ancillary to the primary purpose of such Contract, and (iii) nondisclosure agreements entered into in the ordinary course of business (collectively, (A) and (B), “Material IP Contracts”);
(xi) any Contract limiting that provides for a settlement, conciliation or restraining the Company similar arrangement in connection with any pending or threatened litigation, arbitration or administrative proceedings, which includes any successor thereto from engaging or competing in any manner, in any location or in any businesseffective and outstanding non-monetary remedies;
(xii) all Affiliate Contractsany Contract containing a “take or pay” or similar provision requiring the Company or any Subsidiary to make minimum purchases of a particular product or service from a vendor, supplier or subcontractor in excess of $150,000 per year in the aggregate;
(xiii) any Company IP Agreements as well as Contract (A) with any Contract under which of its officers, directors, managers, employees or stockholders or any member of their immediate families or (B) between or among the Company is a party providing for or its Subsidiaries, on the license one hand, and any member of or settlement the Seller Group, on the other hand, other than offer letters and employment agreements entered into in the ordinary course of business with employees of the Company that do not deviate in any material respect to any Intellectual Property including, without limitation, from the Company’s Intellectual Property (other than commercially available software standard form offer letters and hardware) and any Intellectual Property license employment agreements under which that have been provided to the Company is currently a licenseePurchaser;
(xiv) any Contract concerning pursuant to which the acquisition, disposition, occupancy, management Company or operation any Subsidiary is a lessor or lessee of any Real Property ownedmachinery, leased equipment, motor vehicles, office furniture, fixtures or used by the Companyother personal property involving in excess of $150,000 per annum;
(xv) all collective bargaining agreements entered into by the Companyany Contract with any Governmental Authority;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of BusinessLabor Agreement;
(xvii) any Contracts with Contract that is for the employment or engagement of any Governmental Authority to which the Company is a party;directors, officers, employees or independent contractors at annual compensation in excess of $150,000; or
(xviii) any Contracts Company Benefit Plans or Shared Company Benefit Plans that limitprovides severance, transaction, retention, change in any material respectcontrol, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (termination or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)payment.
(b) The Company is All Material Contracts are in material compliance with the terms and provisions of each Material Contractwritten form. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) a valid and binding on agreement of the Company party thereto in accordance with and its respective terms Subsidiaries, as applicable, and (ii) is in full force and effect. Each Material Contract (There exists no default or description) sets forth the entire agreement and understanding (event of default or complete description of the material termsevent, as applicable)occurrence, between the Company, on one hand, and the other parties thereto, on the other handcondition or act, with respect to the subject matter thereof. No event Company or circumstance has occurred any Subsidiary or to the knowledge of the Company, with respect to any other contracting party, that, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a default or event of default under any Material Contract or result (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 a termination thereof delivery schedule under any Material Contract, (C) the right to accelerate the maturity or would cause performance of any obligation of the Company or permit any Subsidiary under any Material Contract or (D) the acceleration right to cancel, terminate or modify any Material Contract. Neither the Company nor any Subsidiary has waived any of its material rights under any Material Contract. Neither the Company nor any Subsidiary has received any notice or other changes communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. True, correct and complete copies of any right or obligation or all Material Contracts have been provided to Purchaser prior to the loss of any benefit thereunderAgreement Date. The Company has and its Subsidiaries have no reason to believe material dispute with a customer concerning the provision of services by the Company or its Subsidiaries under any party to any Material Contract will not fulfill its obligations thereunder in all material respectswith a customer, and no material customer has communicated any material dissatisfaction with the provisions of services by the Company has not received and its Subsidiaries under any notice of termination or intent to terminate by any party to any Material ContractContract with a customer.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Unit Purchase Agreement (Nu Skin Enterprises, Inc.)
Material Contracts. (a) Section 4.10(a2.12(a) of the Company Seller Disclosure Schedule Letter sets forth a true, correct and complete and correct list of each of the following Contracts Transferred Contracts, except for any Benefit Plan, to which Seller or its Affiliates, in respect of the Company Business, or the Company, is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contractseach, collectively, the a “Material ContractsContract”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyLease;
(ii) any each Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that by its terms requires the payment by involves future payments, other residual Liability, performance or on behalf of the Company in excess of $100,000 per annum services or the delivery by the Company of goods or services with a fair market materials to or by the Business of any amount or value reasonably expected to exceed $2,000,000 in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumany future 12‑month period;
(iii) all Contracts involving a loan each Contract (A) pursuant to which any third Person has granted any license or other right under any Intellectual Property Rights or IT Assets to Seller or its Affiliates that are material to the Business, other than accounts receivable owing from trade debtors Contracts (x) with annual fees of less than $150,000 per annum (or $500,000 over the term of the license agreement if license fees are not determined on an annual basis), or (y) for off-the-shelf Software, IT Assets or information technology services that are generally commercially available or (B) material to the Business pursuant to which any Transferred Intellectual Property or Transferred IT Assets are licensed to a third party, other than licenses granted in the Ordinary Course of Business) , including in connection with the sale or advance to (other than travel and entertainment advances to the employees licensing of products or services of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any partnership agreement, limited liability agreement and affiliation agreement, and any other Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from creates a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development venture or similar arrangement;
(xv) all Contracts each Contract pursuant to which the Company, Seller or any of its Affiliates in respect of the Business acquired another operating business and involving any resolution or settlement payment obligations in excess of any actual or threatened Action $500,000 under which the Company Business has any obligation ongoing rights or Liability that will continue after the Closing Dateobligations;
(xivi) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which Seller or any of its Affiliates with respect to the Business could be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any Person reasonably expected to result in payments with a value in excess of $200,000 in any 12-month period;
(vii) each Contract limiting that prohibits the payment of dividends or restraining distributions in respect of the capital stock, membership interests, partnership interests or other equity interests of the Company, the pledging of the capital stock, membership interests, partnership interests or other equity interests of the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license incurrence of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used indebtedness by the Company;
(xvviii) all collective bargaining each Contract that (A) imposes a non-de minimis restriction on the geographies or businesses or activities in which the Business may operate or engage, (B) contains exclusivity obligations or similar restrictions binding on the Business or that would be binding on the Business after Closing, (C) contains any “take or pay,” “sole source” or “requirements” obligations, or (D) pursuant to which the Business provides any material pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers, including agreements entered into by the Companycontaining “most favored nation” provisions;
(xviix) any each Contract providing that creating indebtedness for borrowed money in amounts (A) in excess of $200,000 individually, or (B) in excess of $500,000 in the Company indemnify any Person in an amount that would be material to the Company, other than aggregate or guaranteeing any such agreement entered into obligations in excess of such amounts;
(x) each Contract involving a remaining commitment by the Business to pay any single capital expenditure in excess of $200,000 or series of capital expenditures in excess of $500,000 in the aggregate; and
(xi) each Contract directly with a Governmental Entity as a counterparty.
(b) Seller has made available to Buyer true and complete copies of each Material Contract, in each case as amended or modified and in effect as of the Execution Date. Except for expirations, including any non-renewals, in the Ordinary Course of Business;
(xvii) any Contracts Business and in accordance with any Governmental Authority to which the Company terms of such Material Contract between the Execution Date and the Closing, each Material Contract is a party;
(xviii) any Contracts that limitvalid, in any material respectbinding and enforceable against Seller, the ability of the Company to compete in any line of business its Affiliates or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in as the case of a leasemay be, per annum) or $150,000 in the aggregate (in the case of a leaseand, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the CompanySeller, the each other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachthereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) is in full force and effect. Each There is no actual or alleged breach or violation of, or default under, any such Material Contract (by Seller, its Affiliates or description) sets forth the entire agreement and understanding (or complete description Company or, to the Knowledge of the material termsSeller, as applicable), between the Company, on one handany counterparty thereto, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or the lapse of time or the giving of notice or both, would reasonably be expected to constitute an event of a default under any Material Contract thereunder by Seller, its Affiliates or result in a termination thereof the Company or would permit or cause or permit the termination, acceleration or other changes modification thereof, in each case, except as would not, individually or in the aggregate, reasonably be expected to be material to the Business. As of the Execution Date, none of Seller or its Affiliates has provided or received any written notice of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent intention to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cornerstone Building Brands, Inc.)
Material Contracts. (a) Section 4.10(a3.20(a) of the Company Disclosure Schedule Letter sets forth forth, as of the date of this Agreement, a true, complete and correct list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):party:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any each Contract that (iA) requires limits or restricts the Company to purchase any product or service in excess of $100,000 and its Subsidiaries from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area region, (B) obligates the Company or during any period Subsidiary to conduct business with any third party on a preferential or exclusive basis or contains any “most favored nations” or similar provisions or (C) grants any right of timefirst refusal, right of first offer, right of negotiation or similar right with respect to any material assets or business of the Company and its Subsidiaries, in the case of each of clauses (A), (B) and (C) above, that would be material to the Company and its Subsidiaries, taken as a whole;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (each Contract that is a joint venture, strategic alliance, partnership or similar arrangements) agreement that is material to which the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a party loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and which are not cancellable without material penalty those between the Company and any of its wholly owned Subsidiaries) relating to (A) indebtedness for borrowed money or without more than ninety (90B) days’ notice; and
(xx) any Contract lease obligations required to purchasebe capitalized under GAAP, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for in each case in an amount in excess of $100,00010,000,000 individually;
(iv) each Contract with respect to an interest rate, individually currency or other swap or derivative transaction (other than those between the Company and any of its Subsidiaries) with a notional value in excess of $10,000,000;
(v) each Contract that is an acquisition or investment agreement or a divestiture agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date of this Agreement to be in excess of $10,000,000 or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries (or any interests therein) after the date of this Agreement with a fair market value or purchase price of more than $10,000,000, excluding, in each case, acquisitions or dispositions of (x) supplies, inventory or products in the ordinary course of business or (y) supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $10,000,000 in the aggregate;
(vii) each Contract pursuant to which the Company or any of its Subsidiaries has agreed to operate a waste-to-energy facility for or on behalf of any Governmental Authority;
(viii) other than as described in clause (vii) above, each Contract pursuant to which the Company or any of its Subsidiaries has agreed to take solid waste from any Governmental Authority or Third Party in an amount greater than 100,000 tons per year (or 80,000 tons per year with respect to Contracts with the Company Joint Ventures listed on Section 1.3 of the Company Disclosure Letter);
(ix) each Contract pursuant to which the Company or any of its Subsidiaries provides services through the Company’s Covanta Environmental Solutions brand and has received payments in excess of $5,000,000 during the fiscal year ended December 31, 2020, the terms of which extends beyond one (1) year from the date of this Agreement;
(x) each Contract pursuant to which the Company or any of its Subsidiaries purchases or sells (A) steam or other useful thermal output; (B) electric energy, capacity, and/or ancillary services; and/or (C) renewable energy certificates, credits, or other environmental attributes associated with renewable generation, howsoever entitled, in the case of a leaseeach of clauses (A), (B) and (C) above, where the Company’s share of future expenditures or receipts would reasonably be expected to exceed $10,000,000 per annumyear;
(xi) each Contract with the twenty (20) largest suppliers (by annual spend) to the core business operations of the waste-to-energy facilities owned or $150,000 operated by the Company and its Subsidiaries in the aggregate (United States during the fiscal year ended December 31, 2020, excluding Contracts relating to electrical power transmission or interconnection, non-recurring construction or administrative or “back office” functions of the Company or its Subsidiaries, and purchase orders entered into in the case ordinary course of business;
(xii) each Contract pursuant to which the Company or any of its Subsidiaries is licensed or licenses Intellectual Property for payments in excess of $5,000,000 per year, other than non-exclusive licenses to the Company of commercially available software and other technology and non-exclusive licenses by the Company in connection with the marketing, sale and use of Company products and services;
(xiii) each Collective Bargaining Agreement;
(xiv) each Contract that is a leasesettlement, for conciliation or similar agreement with any Governmental Authority or pursuant to which the entire term Company or its Subsidiaries will have any monetary obligations in excess of $2,500,000 or material outstanding non-monetary obligations after the lease, not including any option term)date of this Agreement; and
(xxixv) any other each Contract that is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the operation Securities Act. Each Contract of the business type described in clauses (i) through (xv) above is referred to herein as a “Material Contract”, and each Contract of the Company type described in clauses (i), (ii), (iii), (iv), (v), (vi), (xii), (xiii), (xiv) and not otherwise disclosed pursuant (xv) above is referred to this Section 4.10(a)herein as a “Specified Contract”.
(b) The Except for any Material Contract that has terminated or expired in accordance with its terms or except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company is in material compliance with the terms and provisions of Material Adverse Effect, each Material Contract. The CompanyContract is valid and binding and in full force and effect and, and to the Knowledge of the Company, enforceable against the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party parties thereto in accordance with its respective terms terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and (ii) would not reasonably be expected to have, individually or in full force and effect. Each the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, is in violation of or in default under any provision of such Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an any event of default under thereunder, where such breach or default would have a Company Material Adverse Effect. Since January 1, 2020 through the date of this Agreement, neither the Company nor any Material Contract of its Subsidiaries has received any written notice of a material breach or result in material default from a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party counterparty to any Material Contract will not fulfill its obligations thereunder in all material respects, and no counterparty to a Material Contract has notified the Company has not received or any notice of termination or intent Subsidiary in writing that it intends to terminate by any party to any or not renew a Material Contract.
(d) The Company has no Liability for . True and complete copies of the deferred purchase price of property, goods or services, whether connected or not Material Contracts and any material amendments thereto have been made available to Parent prior to the acquisition date of any business (earn-out or other similar type of payments) or noncompetition agreementthis Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Covanta Holding Corp)
Material Contracts. (a) Section 4.10(a) Schedule 3.11 sets forth as of the Company Disclosure Schedule sets forth date hereof a true, complete and correct list of each of the following Contracts (other than any Contract constituting an Excluded Asset) that relate primarily to the Business to which the an Asset Selling Entity or a Conveyed Company is a party or by which (collectively with any such Contract entered into after the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelydate hereof, the “"Material Contracts”):"), true and complete copies of which Sellers have made available to Purchaser prior to the date hereof:
(i) all Contracts that contain restrictions with respect to payment each Equipment Lease which entails annual rental payments in excess of dividends Two Hundred Thousand Dollars ($200,000) per annum or any other distribution One Million Dollars ($1,000,000) in respect of the Membership Units or other Equity of the Companyaggregate;
(ii) each Contract (x) with any Business Employee or officer of the Business requiring payments of salary plus annual performance bonus in excess of One Hundred Thousand Dollars ($100,000) per annum, other than any Contract that which by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery is cancelable by the applicable Conveyed Company with notice of goods not more than thirty (30) days (or services with such longer period as required by any Law) and without cancellation penalties or severance payments and (y) that is a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumsales commission plan;
(iii) all Contracts involving a loan each collective bargaining agreement of any Asset Selling Entity (other than accounts receivable owing from trade debtors in to the Ordinary Course of extent relating to the Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000Conveyed Company;
(iv) any Contract that (i) requires the Company to purchase any product each mortgage, indenture, security agreement, pledge, note, loan agreement or service guarantee in respect of obligations in excess of One Hundred Thousand Dollars ($100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service100,000);
(v) any each customer Contract that relates expected to an acquisition result in payment to the applicable Asset Selling Entity or divestiture Conveyed Company in excess of material assets that contains covenantsOne Million Dollars ($1,000,000) per annum or Five Million Dollars ($5,000,000) in the aggregate (for the avoidance of doubt, indemnities no individual purchase order or other contractual obligations that could impose a Liability that executory Contract shall be required to be disclosed pursuant to this Section 3.11(a)(v) unless the amount outstanding in respect of unperformed portion thereof is material to in excess of the Companyforegoing thresholds);
(vi) any each Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset with vendors of the Business expected to result in payment by the applicable Asset Selling Entity or Conveyed Company, other than a Permitted Encumbrancerespectively, in excess of One Million Dollars ($1,000,000) per annum or Five Million Dollars ($5,000,000) in the aggregate;
(vii) all Contracts under which each Contract materially restricting the ability of the applicable Asset Selling Entity or Conveyed Company to engage in any business or compete with any Person (other than or which would, automatically and immediately upon the Company) has directly or indirectly guaranteed Indebtedness consummation of any acquisition of the Company in excess Purchased Assets or the Business, similarly restrict any acquirer of $50,000the Business or the Purchased Assets (without regard to the identity of such acquirer);
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Personeach material joint venture Contract and material joint product development Contract;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, coeach material Contract pursuant to which Intellectual Property (other than off-marketing, cothe-promotion, joint development shelf software) is licensed to the Business (or similar arrangementthe Asset Selling Entities with respect to the Business or Conveyed Companies);
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;each Retention Agreement; and
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any each Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to Lease which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount entails rental payments in excess of Two Hundred Fifty Thousand Dollars ($100,000, individually (in the case of a lease, 250,000) per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company Each Material Contract is in material compliance with a valid, binding and enforceable obligation of the terms and provisions of each Material Contract. The Asset Selling Entity, Conveyed Company, and Seller or its Affiliates, as applicable, and, to the Knowledge of the CompanySellers, of the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachparties thereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms terms, and (ii) in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect. Each No Seller has received any written notice from any other party to any such Material Contract (that such third party intends to terminate or description) sets not renew any such Material Contract. Except as set forth on Schedule 3.11, there exists no default or event of default by the entire agreement and understanding (applicable Asset Selling Entity or complete description Conveyed Company or, to the Knowledge of the material termsSellers, as applicable), between the Company, on one hand, and the any other parties thereto, on the other hand, party to any such Contract with respect to the subject matter thereof. No event any material term or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes provision of any right such Contract, in each case which would, individually or obligation in the aggregate, have or the loss of any benefit thereunder. The Company has no reason reasonably be expected to believe any party to any have a Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractAdverse Effect.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (TTM Technologies Inc)
Material Contracts. (a) Section 4.10(a) Except for the Leases set forth on Schedule 4.16 of the Company Sellers’ Disclosure Letter, Schedule 4.12 of the Sellers’ Disclosure Letter sets forth a trueforth, complete and correct list as of each the date hereof, all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company is any of them or their assets or properties are otherwise bound and which have not been entirely fulfilled or performed (such Contracts, collectivelyall Contracts required to be so listed, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyEach Hotel Management Agreement;
(ii) Contracts for the sale of any Contract that by its terms requires the payment by or on behalf assets of the Company or any of its Subsidiaries in excess of $100,000 per annum or 250,000 other than in the delivery by the Company ordinary course of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumbusiness;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viiiiv) any bonds Contracts creating or Contracts of Guarantee in which the Company acts as governing a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any partnership, joint venture, partnership, strategic alliance, shareholders’ agreementloyalty program, co-marketingany arrangement impacting the distribution of hotel rooms across the Business’s portfolio (whether through the use of discounts, co-promotionpromotions or otherwise) or any other arrangement of a similar type to any of the foregoing, joint development or similar arrangementin each case, with any third party;
(xv) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has or any obligation of its Subsidiaries has, directly or Liability indirectly, (A) made any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person or any capital expenditure, in each case that will continue remains outstanding as of the date hereof, or (B) agreed to make after the Closing Datedate hereof any loan, advance, or assignment of payment to any Person or any capital contribution to, or other investment in, any Person or any capital expenditure, in the case of each of the preceding clauses (A) and (B);
(xivi) any Contract limiting Contracts containing a covenant restricting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect purporting to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, restrict the ability of the Company or any of its Subsidiaries to compete engage in any line of business or with any Person or in any geographic area or during to compete with any period Person;
(vii) Contract for the employment or engagement of timeany officer, employee, manager, consultant or other service provider of the Company or any of its Subsidiaries (each, a “Service Provider”) that: (A) provides for annual base compensation at or above $200,000; (B) provides for the payment, increase or acceleration of any payment, vesting or other compensation or benefits to any Service Provider upon or in connection with the consummation of the Transactions; or (C) restricts the Company’s or any of its Subsidiaries’ ability to terminate the employment or engagement of any Service Provider at any time for any lawful reason or for no reason without penalty or liability (other than liability for accrued but unpaid compensation and benefits through the date of termination), except in the case of clauses (A) and (C), to the extent that such Services Providers are not employed or do not provide services primarily at a “home office location” of the Company;
(viii) Each collective bargaining agreement or other contract with any labor union;
(ix) Contracts with any vendor set forth on Schedule 4.13 of the Sellers’ Disclosure Letter;
(x) Contracts that: (A) involve the commitment or expenditure (or series of commitments or expenditures) by the Company or any of its Subsidiaries of more than $250,000 annually and (B) are not cancelable upon thirty (30) or fewer days’ notice without any liability;
(xi) Contracts other than the Hotel Management Agreements that provide for the receipt of payment by the Company or any of its Subsidiaries of more than $500,000 annually;
(xii) Contracts requiring the Company or any of its Subsidiaries to assume or guarantee any debt of any Person (including any Subsidiary) or imposing an Encumbrance (except for any Permitted Encumbrance) on any of the assets or properties of the Company or any of its Subsidiaries;
(xiii) Contracts pursuant to which the Company or any of its Subsidiaries (A) grants any material license to any Person to use any Trademark or other Intellectual Property of the Company or its Subsidiaries or (B) receives any material license from any Person to use any Trademark or other Intellectual Property of a third party, other than software licenses that are available on standard terms to the public generally;
(xiv) Contracts granting any Person a first refusal, first offer or similar preferential right to purchase or acquire any material right, asset, equity interest or property of the Company or any its Subsidiaries;
(xv) Contracts relating to the acquisition or disposition of any business, equity securities, material assets or property of any Person (i) since the Inception Date or (ii) containing any (A) outstanding “earn-out” or other similar contingent payment or performance obligations or (B) provisions otherwise imposing continuing liability on the Company or any of its Subsidiaries;
(xvi) Contracts imposing indemnification obligations on the Company or any of its Subsidiaries (other than vendor contracts entered into in the ordinary course of business);
(xvii) Contract that is a settlement, conciliation, release, compromise, waiver or similar agreement that imposes any obligations upon the Company or any of its Subsidiaries after the date of this Agreement;
(xviii) Each Contract relating to an Affiliate Transaction;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeany Governmental Authority; and
(xx) any Contract commitment or agreement to purchase, lease or otherwise acquire the right to own, use or lease enter into any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) Each of the Material Contracts: (i) is the legal, valid and binding obligation of the Company or of its Subsidiaries, as applicable; (ii) assuming such Material Contract is binding on and enforceable against the other parties thereto, is enforceable against the Company or its Subsidiaries, as applicable, in accordance with its terms, subject, as to enforcement, to the Enforceability Exceptions; and (iii) is in full force and effect, except in each case to the extent it has previously expired in accordance with its terms. The Company or its Subsidiaries, as applicable, is not in material compliance with the terms and provisions of each breach or default under any Material Contract. The Company, and and, to the Knowledge of the Company, as of the date hereof, no other party to any Material Contract Contract, is not in material breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete thereunder and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, with or without notice or lapse of time times or both, would constitute an event of a material breach or default under any Material Contract or result in a termination thereof or would cause or permit the termination, modification, acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe thereof by any party to any such Material Contract will not fulfill its obligations thereunder in all material respectsContract. As of the date hereof, and neither the Company nor any of its Subsidiaries has not received any notice of any intention of any other party thereto to cancel, terminate or modify any such Material Contract.
(c) Without limiting the generality of Section 4.12(b), neither the Company nor any Subsidiary (i) has received notice in writing of a performance test failure in connection with any Hotel Management Agreement, (ii) is currently in default of any performance test or will be in default of a performance test with upon the giving of notice or passage of time, in each case, in connection with any Hotel Management Agreement or (iii) is in violation of any radius restriction of any Hotel Management Agreement. As of the date hereof, neither the Company nor any Subsidiary has received any notice of termination of a Hotel Management Agreement, or has any Knowledge of a counterparty’s intent to terminate by any party deliver a notice of termination of a Hotel Management Agreement in connection with the sale of an underlying property or Knowledge of the pending or proposed sale of an underlying property subject to any Material Contracta Hotel Management Agreement.
(d) The Prior to the date hereof, the Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not made available to the acquisition Purchaser true, correct and complete copies of each Material Contract and any business (earn-out amendments, modifications or other similar type of payments) or noncompetition agreementsupplements thereto.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Hyatt Hotels Corp)
Material Contracts. (a) Section 4.10(a) Except as filed as exhibits to or disclosed in the Company SEC Documents, and except for this Agreement, as of the date hereof, neither the Company Disclosure Schedule sets forth a true, complete and correct list nor any Subsidiary of each of the following Contracts to which the Company is a party to or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):by any Contract:
(i) all Contracts that contain restrictions with respect is or would be required to payment be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanyExchange Act);
(ii) pursuant to which the Company or any Contract of its Subsidiaries received revenue from a customer for the 2020 fiscal year in excess of $250,000 in the aggregate with respect to each such customer;
(iii) pursuant to which the Company or any of its Subsidiaries made payments to any vendor for the 2020 fiscal year in excess of $250,000 in the aggregate, including by means of royalty payments with respect to each such vendor;
(iv) evidencing a capital expenditure or obligation to make any capital commitment that is effective as of the date hereof and in an amount in excess of $250,000 in the aggregate;
(v) containing a covenant limiting the ability of the Company or any Subsidiary of the Company (or, at any time after the consummation of the Merger, Parent or any of its Affiliates) to ACTIVE/110954383.28 compete or engage in any line of business, to compete with any Person in any geographic area or to enter any territory, market or field;
(vi) (A) relating to or evidencing Indebtedness or any guarantee for the benefit of a third party of Indebtedness by its terms requires the payment by Company or on behalf any Subsidiary of the Company in excess of $100,000 per annum 250,000 in the aggregate or the delivery by the Company of goods (B) that grants or services with creates a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (Lien, other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)a Permitted Lien, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the CompanyCompany or any of its Subsidiaries, other than except for such Liens that are not material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a Permitted Encumbrancewhole;
(vii) all Contracts pursuant to which a license is granted by the Company or any Subsidiary of the Company of or under Owned Intellectual Property (i) on an exclusive basis, or (ii) pursuant to which the Company or any Person (Subsidiary received revenues for the 2020 fiscal year in excess of $50,000 per Contract, in each case other than (A) non-exclusive licenses granted to customers of the Company) has directly Company or indirectly guaranteed Indebtedness any Subsidiary of the Company in connection with the sale or licensing of the Company’s or its Subsidiaries’ products or services, (B) nondisclosure agreements granting a limited right to use confidential information subject to customary protections to preserve confidentiality and proprietary rights and entered into in the ordinary course of business, and (C) Contracts primarily for the provision of services to the Company or its Subsidiaries in which the non-exclusive licenses to any Owned Intellectual Property in such Contract are merely incidental to the transaction contemplated in such Contract;
(viii) pursuant to which a license of or under Third Party Intellectual Property is granted to the Company or any Subsidiary of the Company (i) on an exclusive basis, or (ii) on a non-exclusive basis, other than (A) Contracts for Open Source Software, (B) Contracts for Off-the-Shelf Software pursuant to which the Company or any Subsidiary made payments during the 2020 fiscal year of less than $250,000 per Contract, (C) nondisclosure agreements granting a limited right to use confidential information subject to customary protections to preserve confidentiality and proprietary rights and entered into in the ordinary course of business, and (D) employee invention assignment agreements and consulting agreements with employees and Independent Contractors of the Company or its Subsidiaries on the Company’s or any of its Subsidiaries’ standard form of agreement, copies of which have been Made Available to Parent, or a substantially similar agreement;
(ix) that otherwise restricts the Company’s ability to use the Owned Intellectual Property (including any settlement agreements, co-existence agreements, or covenants not to ▇▇▇);
(x) relating to (A) the acquisition of any interest in another entity (whether by merger, consolidation, recapitalization, share exchange, sale of stock, sale of assets or otherwise) or (B) the disposition of any material assets of the Company or any of its Subsidiaries (other than sales of inventory in the ordinary course of business), in each case, under which there are any continuing “earn out” or other contingent payment or indemnification obligations on the part of the Company or its Subsidiaries;
(xi) that involves any material partnership, joint venture or similar arrangement or that prohibits the payment of dividends or distributions in respect of the Equity Interests 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 guarantees by the Company or any of its Subsidiaries;
(xii) that is a settlement or similar Contract with any Governmental Authority; 41 ACTIVE/110954383.28
(xiii) that relates to hedging, factoring, derivatives or similar arrangements other than foreign currency hedging, factoring or other similar transactions conducted in the ordinary course of business substantially consistent with past practices;
(xiv) that would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(xv) that is a lease or sublease (A) for any real property used for manufacturing purposes by the Company or one of its Subsidiaries or (B) of real property requiring payments by the Company or any of its Subsidiaries in excess of $50,000 during any fiscal year;
(xvi) that is an active Contract with a Governmental Authority;
(xvii) that contains any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person, except for any such Contract that is a confidentiality, nondisclosure or similar type of agreement;
(xviii) (A) that grants or otherwise provides to any Person any exclusive supply or distribution agreement or other exclusive rights or that materially restricts the Company or any of its Subsidiaries with respect to sales, distribution, licensing, marketing or development of any product or service or (B) that grants or otherwise provides to any Person any (1) “most favored nation” status or any similar status requiring the Company or any of its Subsidiaries to offer a Person any term, conditions or concessions that are at least as favorable as those offered to one or more other Persons or (2) rights of first refusal, rights of first negotiation or similar rights;
(xix) (or series of related Contracts) containing any future capital expenditure obligations or for the acquisition of fixed assets requiring payment by the Company or any of its Subsidiaries (or otherwise relating to the business) in excess of $250,000;
(xx) which contains any price reductions based on benchmarking to market or formulaic methodology;
(xxi) pursuant to which any of the Company or its Subsidiaries is lessee of or holds or operates any personal property owned by any other Person, for which the annual rental rate exceeds $50,000;
(viiixxii) any bonds or Contracts that provides for a change of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venturecontrol, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development retention or similar arrangement;
(x) all Contracts involving payment by any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
of its Subsidiaries (xii) all Affiliate Contracts;
(xiii) except for any Company IP Agreements Employee Plan pursuant to its terms as well as any Contract under which in effect on the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option termdate hereof); and
(xxixxiii) any other Contract that is material to the operation amendments, supplements and/or modifications in respect of any of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) Each Contract of the type described above is referred to herein as a “Material Contract.” The Company is has Made Available materially correct and complete copies of all Material Contracts, in material compliance with each case, as amended or otherwise modified and in effect prior to the terms date hereof. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, all of the Material Contracts are (i) valid, binding and provisions enforceable on the Company or the applicable Subsidiary of each Material Contract. The the Company, and as the case may be, and, to the Knowledge of the Company, the each other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachthereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (iiB) in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by 42 ACTIVE/110954383.28 general principles of specific performance, injunctive relief and other equitable remedies. Each Material Contract (or description) sets forth To the entire agreement and understanding (or complete description Knowledge of the material terms, as applicable), between the Company, on one handeach Material Contract will continue to be a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary party thereto immediately following the Closing, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties theretothereto have, on the other handviolated any provision of, or committed or failed to perform any act under, and no event, occurrence, act or condition exists, which (with respect to the subject matter thereof. No event or circumstance has occurred thatwithout notice, with notice or lapse of time or both, ) would reasonably be expected to constitute an event of a default under the provisions of any Material Contract except, in each case, for those violations and defaults that would not reasonably be expected to have, individually or result in the aggregate, a termination thereof or would cause or permit Company Material Adverse Effect, and, as of the acceleration or other changes date hereof neither the Company nor any Subsidiary of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any written notice of termination any of the foregoing, or intent to terminate by that any party intends to terminate, cancel or not renew any Material Contract.
(d) The Company has no Liability , except for the deferred purchase price of propertysuch termination, goods cancellation or services, whether connected or non-renewal which would not reasonably be expected to be material to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementCompany and its Subsidiaries, taken as a whole.
Appears in 1 contract
Sources: Merger Agreement (SYNAPTICS Inc)
Material Contracts. (a) Section 4.10(aExcept for this Agreement and the Contracts specifically identified in Schedule 2.20 of the Sellers’ Disclosure Letter, the Company is not a party to or bound by any of the following Contracts (each a “Material Contract”, it being understood that the use of the word “material” in this definition is not an admission that any of the individual contracts described below are in fact material to the business or operations of the Company):
(i) any distributor, original equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer’s representative Contract;
(ii) any continuing Contract for the purchase, sale or license of materials, supplies, equipment, services, software, Intellectual Property or other assets involving in the case of any such Contract more than $10,000 over the life of the Contract;
(iii) any Contract that expires or may be renewed at the option of any Person other than the Company so as to expire more than one year after the Agreement Date;
(iv) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(v) any Contract for capital expenditures in excess of $10,000 in the aggregate;
(vi) any Contract limiting the freedom of the Company Disclosure Schedule sets forth a trueto engage or participate, complete and correct list or compete with any other Person, in any line of each business, market or geographic area, or to make use of any Intellectual Property, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract otherwise limiting the right of the following Company to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(vii) any Contract pursuant to which the Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in excess of $10,000 per annum;
(viii) any Contract (A) with any of its officers, directors, employees or stockholders or any member of their immediate families or (B) with any Person with whom the Company does not deal at arm’s length;
(ix) any Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person;
(x) all licenses, sublicenses and other Contracts as to which the Company is a party and pursuant to which any Person is authorized to use any Company IP Rights (excepting nonexclusive licenses of Company Products to its customers in the ordinary course of its business consistent with its past practices);
(xi) other than “shrink wrap” and similar generally available commercial end-user licenses to software that is not redistributed with or used in the development or provisions of the Company Products that have an individual acquisition cost of $5,000 or less, all licenses, sublicenses and other Contracts to which the Company is a party or by and pursuant to which the Company acquired or is bound and which have not been entirely fulfilled or performed authorized to use any Third Party Intellectual Property Rights (such Contracts, collectively, excepting nonexclusive licenses from its vendors in the “Material Contracts”):ordinary course of business);
(ixii) all licenses, sublicenses and other Contracts that contain restrictions with respect pursuant to payment of dividends or which the Company has agreed to any other distribution in respect restriction on the right of the Membership Units Company to use or other Equity enforce any Company-Owned IP Rights or pursuant to which the Company agrees to encumber, transfer or sell rights in any Company-Owned IP Rights;
(xiii) any Contract providing for the development of any software, content, technology or Intellectual Property, independently or jointly, by or for the Company;
(xiv) any Contract to license or authorize any third party to manufacture or reproduce any of the products, services, technology or Intellectual Property of the Company;
(iixv) any Contracts relating to the mechanics of, or participation by, the Company in, or the affiliation of the Company with, any industry standards group or association;
(xvi) (A) any joint venture Contract, (B) any Contract that by its terms requires the payment by involves a sharing of revenues, profits, cash flows, expenses or on behalf of the Company in excess of $100,000 per annum losses with other Persons or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(ivC) any Contract that involves the payment of royalties to any other Person;
(ixvii) requires any agreement of indemnification or warranty or any Contract containing any support, maintenance or service obligation or cost on the part of the Company (other than under its unmodified form of standard customer or distributor agreement, the form of which has been made available to purchase counsel to Purchaser);
(xviii) any product Contract for the employment of any director, officer, employee or service in excess consultant of $100,000 from a third party or (ii) requires that the Company deal exclusively or any other type of Contract with any officer, employee or consultant of the Company that is not immediately terminable by the Company without cost or liability, including any Contract requiring it to make a third party payment to any director, officer, employee or consultant on account of the Share Purchase, any transaction contemplated by this Agreement or any Contract that is entered into in connection with the sale or purchase of any product or servicethis Agreement;
(vxix) any Contract that relates or plan (including any stock option, merger and/or stock bonus plan) relating to an acquisition the sale, issuance, grant, exercise, award, purchase, repurchase or divestiture redemption of material assets that contains covenantsany shares of Company Capital Stock or any other securities of the Company or any options, indemnities warrants, convertible notes or other contractual obligations that could impose a Liability that is material rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the Companyrepurchase rights disclosed on Schedule 2.4(a)-2 of the Sellers’ Disclosure Letter;
(vixx) any Contract under which the Company has provides any outstanding Indebtedness advice or evidencing an Encumbrance on services to any property third party, including any consulting Contract, professional Contract or asset software implementation, deployment or development services Contract, or support services Contract (including, for each such contract, a description of the Companypercentage of completion and expected additional hours, other than a Permitted Encumbranceresources and costs necessary to complete such services);
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any Contract with any labor union or any collective bargaining agreement or similar contract with its employees;
(xxii) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company, in connection with this Agreement and the transactions contemplated hereby;
(xxiii) any Contract pursuant to which the Company has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any contract pursuant to which it has any ownership interest in any other Person (other than its subsidiaries);
(xxiv) any Contract with any Governmental Entity or any Company Authorization;
(xxv) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into with customers and distributors in the ordinary course of business pursuant to the Company’s standard unmodified form (a copy of which has been provided to counsel to Purchaser);
(xxvi) any settlement agreement;
(xxvii) 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 Share Purchase or other transactions contemplated hereunder, either alone or in combination with any other event; or
(xxviii) any other Contract or obligation not listed in clauses (i) through (xxiii) that individually had or has a value or payment obligation in excess of $10,000 over the life of the Contract or is otherwise material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)or its business, operations, financial condition, properties or assets.
(b) The Company is Except as set forth on Schedule 2.20, all Material Contracts are in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its termswritten form. The Company has performed in all respects all of the obligations required to be performed by it and is entitled to all benefits under, and has not received notice any written allegation of default in respect of, any breachMaterial Contract. Each of the Material Contracts is in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or notice event of termination by default with respect to the Company or, to the Company’s knowledge, with respect to any Person other contracting party under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between To the Company’s knowledge, on one handthere exists no other event, and the other parties theretooccurrence, on the other hand, condition or act with respect to the subject matter thereof. No event or circumstance has occurred thatCompany which would, with notice or the giving of notice, the lapse of time or boththe happening of any other event or condition, would constitute an reasonably be expected to (i) become a default or event of default under any Material Contract or result (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 a termination thereof delivery Schedule under any Material Contract, (C) the right to accelerate the maturity or would cause or permit the acceleration or other changes performance of any obligation of the Company or any of its Subsidiaries under any Material Contract, or (D) the right to cancel, terminate or obligation or the loss of modify any benefit thereunderMaterial Contract. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any written notice of termination or intent other communication regarding any actual or possible violation or breach of, default under, or intention to terminate by any party to cancel or modify any Material Contract. The Company does not have any liability for renegotiation of government Contracts. True, correct and complete copies of all Material Contracts have been provided to Purchaser prior to the Agreement Date.
(dc) The Company has no Liability for not entered into any Contract that restricts any area in which the deferred purchase price Company can engage, participate or compete with any other Person, and that would be binding upon Purchaser after the Closing, including any restriction upon competing in the area of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementlumbar total disc replacement products.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aExcept as set forth on Schedule 2.16(a), the Company is not a party to any Contract:
(i) that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of Fifty Thousand Dollars ($50,000);
(ii) that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of Fifty Thousand Dollars ($50,000);
(iii) that was not entered into in the ordinary course of business and that involves expenditures or receipts of the Company Disclosure Schedule sets forth a truein excess of Fifty Thousand Dollars ($50,000);
(iv) relating to any written employment, complete and correct list consulting, or similar arrangements requiring payment by the Company of each base annual compensation in excess of Fifty Thousand Dollars ($50,000);
(v) with or relating to any staffing agency for the following Contracts provision of temporary labor, personnel, or agency workers to the Company pursuant to which the Company is paid more than Fifty Thousand Dollars ($50,000) in the last fiscal year;
(vi) relating to any labor union or other employee representative of a party or group of employees relating to wages, hours, and other conditions of employment;
(vii) relating to any written warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by the Company other than in the ordinary course of business;
(viii) pursuant to which the Company is bound and which have not been entirely fulfilled has incurred or performed (such Contracts, collectively, the “Material Contracts”):committed to incur any Funded Indebtedness;
(iix) all Contracts that contain restrictions with respect to payment of dividends or by its terms grants an Encumbrance upon any other distribution in respect of the Membership Units or other Equity material asset of the Company;
(iix) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)sale, assignment, license, or investment in, any Person or any agreement relating to the making other disposition of any such loan, advance material asset or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset right of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (in the ordinary course of business, other than the Company) has directly or indirectly guaranteed Indebtedness of the any Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing DateIntellectual Property Licenses;
(xi) any Contract limiting or restraining pursuant to which the Company (other than pursuant to a Company Loan) (A) paid more than One Hundred Thousand Dollars ($100,000) in the last fiscal year or any successor thereto from engaging or competing (B) received more than One Hundred Thousand Dollars ($100,000) in the last fiscal year and not otherwise listed in any manner, in any location or in any businessother portion of Schedule 2.16(a);
(xii) all Affiliate Contractsthat by its terms contains any covenant or provision currently in effect limiting the freedom of the Company from engaging in a line of business or competing in any geographic area;
(xiii) any Company IP Agreements as well as any Contract under which that by its terms grants to the Company is a party providing for the license of or settlement with respect exclusive right to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software provide Products and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseeServices;
(xiv) pursuant to which the Company is by its terms obligated to make any Contract concerning the acquisitionseverance, dispositiontermination, occupancychange in control, management or operation of similar payment to any Real Property ownedcurrent or former Company Employee, leased officer, director, or used by the Companymanager;
(xv) all collective bargaining agreements entered into by containing covenants or other obligations of the Company pertaining to the non-solicitation of employees, customers, or Contractors or granting any Person a right of first refusal, first offer, first negotiation, or other exclusivity, requirements, output, or “most favored customer” provisions or similar restrictions on the operation or scope of the Company’s business or operations;
(xvi) any Contract providing that is a partnership or joint venture agreement in which the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Businessparticipates as a general partner or joint venturer;
(xvii) any Contracts with any Governmental Authority pursuant to which the Company is a partyhas advanced or loaned any amount to any of its directors, officers, or employees outside the ordinary course of business;
(xviii) with any Contracts that limitmember, in any material respectmanager, the ability or officer of the Company to compete in or any line Affiliate of business or with any Person or in any geographic area or during any period of timethe same (other than an employment agreement);
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to under which the Company is serves Medicare beneficiaries who require equipment or supplies in one or more Competitive Bidding Areas (CBAs) through a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andDMEPOS Competitive Bidding program;
(xx) pertaining to the provision, sale, distribution, labeling, or marketing of items and/or services that are payable to any Contract to purchasePerson, lease in whole or otherwise acquire the right to ownin part, use or lease any property or assetsby a Federal Health Care Program, including such Contracts entered into by an Affiliate of the CompanyMedicare, for an amount in excess of $100,000Medicaid, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); andand/or TRICARE;
(xxi) with any other Contract that is material Physician or Physician-owned entity, whether written or oral;
(xxii) with any Governmental Authority; or
(xxiii) any outstanding written legally binding commitment to the operation enter into any agreement of the business type described in the foregoing subsections of the Company and not otherwise disclosed pursuant to this Section 4.10(a2.16(a).
(b) Except as set forth in Schedule 2.16(b), each Contract that is required to be listed in Schedule 2.16(a) (each, a “Material Contract”) is in full force and effect and constitutes the legal, valid, and binding obligation of the Company and each other party thereto, enforceable against such party in accordance with its terms, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar Laws affecting creditors’ rights and remedies generally. The Company is in material compliance has made available to Purchaser complete and correct copies of all written Material Contracts, together with all amendments, supplements, or modifications thereto. There are no oral Material Contracts. Neither the terms and provisions of each Material Contract. The CompanyCompany nor, and to the Knowledge of the CompanySellers, the any other party to any Material Contract Contract, is not in breach of, or in default under under, such Material Contract, in any material respect. As of its terms. The Company the date hereof, no party has not received notice of given any breach, default or written notice of termination by any Person under any Material Contract. A true, complete and correct copy or cancellation of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in that it intends to assert a termination thereof breach of, or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent seek to terminate by any party to or cancel, any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a true, complete All contracts and correct list of each of the following Contracts other material agreements to which the Company is a party or by which involving the Company is bound following are listed on Schedule 4.14(a) and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):provided and/or made available to HSCC:
(i) all Contracts that contain restrictions with respect any agreement (or group of related agreements) for the lease of real or personal property to payment of dividends or from any other distribution in respect of the Membership Units or other Equity of the CompanyPerson;
(ii) any Contract that by its terms requires agreement (or group of related agreements) for the payment by purchase or on behalf sale of raw materials, supplies, commodities, products, or other personal property or for the Company furnishing or receipt of services; the performance of which will extend past the Closing Date and involve consideration in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum15,000;
(iii) all Contracts involving any agreement concerning a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) partnership, limited liability company or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person joint venture or any agreement relating to that provides for the making sharing of any such loan, advance revenues or investment in excess of $25,000profits by or with the Company;
(iv) any Contract that agreement (ior group of related agreements) requires under which the Company has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation pursuant to purchase any product or service which it has imposed a Security Interest in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase respect of any product of its assets, tangible or serviceintangible;
(v) any Contract that relates to an acquisition agreement concerning confidentiality or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Companynoncompetition;
(vi) any Contract under which the Company has agreement with any outstanding Indebtedness or evidencing an Encumbrance on any property or asset Affiliate of the Company, other than a Permitted Encumbranceor any Affiliate of such Person;
(vii) all Contracts under which any Person (Employee Benefit Plan, and any stock option, stock purchase, stock appreciation, deferred compensation, severance, or other than plan or arrangement for the benefit of the Company) has directly ’s current or indirectly guaranteed Indebtedness of the Company in excess of $50,000former directors, officers, employees or any other individual;
(viii) any bonds agreement for the employment of any individual on a full-time, part-time, consulting, or Contracts of Guarantee other basis or providing severance, change in which the Company acts as a surety control or guarantor with respect to any obligation (fixed or contingent) of another Personother compensation and benefits;
(ix) all Contracts involving any joint ventureagreement pursuant to which the Company has advanced or loaned any amount to any of its directors, partnershipofficers, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementand employees;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under agreement pursuant to which the Company has any obligation consequences of a default or Liability that will continue after termination could have a Material Adverse Effect on the Closing Date;Company; or
(xi) any Contract limiting other agreement (or restraining group of related agreements) outside the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license ordinary course of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period operations the performance of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount involves consideration in excess of $100,000, individually (15,000. The Company has delivered to or given HSCC access to a correct and complete copy of each written agreement listed in Schedule 4.14(a) and a written summary setting forth the case terms and conditions of a lease, per annum) or $150,000 each oral agreement referred to in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(aSchedule 4.14(a).
(b) The Company With respect to each agreement listed or referred to in Schedule 4.14(a), (i) the agreement is in material compliance with the terms and provisions of each Material Contract. The Companylegal, valid, binding, enforceable, and in full force and effect; (ii) no notice of this Agreement or consent of any third party is required in order to execute and deliver this Agreement or to consummate the transaction contemplated hereby, and, after Closing, the agreement shall continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms; (iii) to the Knowledge of the Company, the other no third party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handdefault, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No no event or circumstance has occurred that, which with notice or lapse of time or both, would constitute an event of default under any Material Contract a breach or result in a termination thereof or would cause default, or permit termination, modification, or acceleration, under the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, agreement; and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(div) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition Knowledge of the Company, no party has repudiated any business (earn-out or other similar type provision of payments) or noncompetition the agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aExcept as set forth on Schedule 4.12(a), neither the Companies nor any Subsidiary is a party to or bound by (and none of their respective assets that are used in connection with the Business are bound by) of the Company Disclosure Schedule sets forth a true, complete and correct list of each any of the following Contracts that primarily relates to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):Business:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units indenture, credit agreement, loan agreement, note purchase agreement, security agreement, financing agreement, guarantee, note, mortgage or other Equity evidence of the CompanyIndebtedness (or guarantee thereof) of any person in excess of $10,000,000;
(ii) Contract (other than this Agreement) for the sale of any of its assets after the date of this Agreement (other than sales of assets and inventory in the Ordinary Course or as otherwise permissible under Section 3.1);
(iii) Contract (other than a Company Plan or award agreement thereunder) that by its terms requires contains a put, call, right of first refusal, right of first negotiation, right of first offer or redemption, repurchase or similar right pursuant to which a person would be required to, or have the payment by option or on behalf right to, purchase or sell, as applicable, any equity interests, businesses, lines of the Company business, divisions, joint ventures, partnerships or other assets of any person with a book value of or for a purchase price in excess of $100,000 per annum 5,000,000 or which, if consummated, would be, or would reasonably be expected to be, material to the Business;
(iv) settlement or similar Contract with a Governmental Body or order or other administrative confirmatory action letter;
(v) Contract providing for indemnification (including any obligations to advance funds for expenses) of the current or former directors or officers of any of the Companies or the delivery by Subsidiaries (other than Contracts entered into in the Company Ordinary Course);
(vi) Union Agreement;
(vii) Contract for capital expenditures or the acquisition or construction of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive fixed assets which requires aggregate future payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,0005,000,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement Contracts entered into in the Ordinary Course and any guarantees thereunder) containing covenants to indemnify or hold harmless another person, unless such indemnification or hold harmless obligation to such person contained in such Contract would not reasonably be expected to exceed a maximum of Business$40,000,000;
(xviiix) any Contracts with any Governmental Authority Contract that limits or purports to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of any Company or any Subsidiary or, following the Company Closing, Buyer or any of its Affiliates, to compete in or conduct any line of business or compete with any Person person or in any geographic area or during any period of time;
(xixx) all license, assignment, joint ownership Contract, royalty Contract or other Contract with respect to Intellectual Property (iother than license agreements with respect to specific projects pursuant to a customer Contract entered into in the Ordinary Course and generally commercially available, “off-the-shelf” software programs with a one-time annual cost of less than $10,000) employment agreements which Contract, or which Intellectual Property, is material to the Business;
(excludingxi) (A) joint venture, for certaintypartnership or other similar Contract (including, any employees who are employed at willbut limited to, collaboration, participation and off-set Contracts) and (iiB) Contracts Contract pursuant to which a person has entered into (1) a partnership or joint venture with independent contractors any other person relating to the Business or consultants (2) any collaboration, participation, off-set or similar arrangementsContract which, in the case of this clause (2), is material to the Business;
(xii) any Contract that (A) grants to any third person any material exclusive license or supply or distribution agreement or other similar material exclusive rights, (B) grants to any third person any guaranteed availability of supply or services for a period greater than the one (1) year anniversary of the date of this Agreement and, in each case, requires aggregate future payments to the Business in excess of $5,000,000 per annum, (C) grants to any third person any “most favored nation” rights or (D) grants to any third person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to any of the Companies or the Subsidiaries in excess of $10,000,000 per annum;
(xiii) any Contract, other than a Company Plan, which requires future payments by or to any of the Company is Companies or the Subsidiaries in excess of $10,000,000 per annum containing “change of control” or similar provisions;
(xiv) any material sole source supply Contracts;
(xv) any interest rate, currency or commodity swap, exchange, commodity option or hedging Contract with a party and which are not cancellable without material penalty or without more than remaining term in excess of ninety (90) days’ notice; and
(xx) any Contract days or pursuant to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount which a termination payment in excess of $100,000, individually 1,000,000 would be payable were such hedge to be liquidated on the date of this Agreement;
(xvi) any Contract entered into in the case last twelve (12) months reflecting settlement of a leaseany Legal Proceedings, per annumincluding pending or threatened Legal Proceedings, other than (A) releases immaterial in nature or $150,000 amount entered into with former employees or independent contractors, in the aggregate Ordinary Course with the routine cessation of such employee’s or independent contractor’s employment with Seller or (in the case of a lease, B) settlement Contracts for the entire term of the lease, cash only (which has been paid) and does not including any option term)exceed $1,000,000; andor
(xxixvii) any other Contract that (other than this Agreement, purchase orders for the purchase of inventory in the Ordinary Course, purchase orders entered into in the performance of customer Contracts in the Ordinary Course, Company Plans or Contracts under which a Person is material obligated to make or receive payments in the operation future in excess of $10,000,000 per annum or $50,000,000 during the remaining life of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Contract.
(b) The Company Each such Contract required to be disclosed on Schedule 4.12(a) as described in clauses (i)-(xvii) is in material compliance with the terms and provisions of each referred to herein as a “Material Contract. .” The Company, and Companies have made available to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete Buyer a true and correct copy of each written Material Contract has been provided Contract, together with all amendments, modifications, waivers and other changes thereto, other than those which are immaterial. Schedule 4.12(a) also includes, with respect to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) Contract, whether oral or written, the names of the Company Disclosure Scheduleparties, the date thereof and its title or other general description. Seller has furnished to Buyer a written summary of any and all oral Material Contracts and will furnish any further information that Buyer may reasonably request in connection with any Material Contract.
(c) Each Material Contract is Except as would not be, or would not reasonably be expected to be, individually or in the aggregate, material to, or have a material impact on, the Business: (i) valid and binding on none of Seller, the Company Companies or the Subsidiaries is (and, to Seller’s Knowledge, no other party thereto is) in accordance with its respective terms and default under any Material Contract, (ii) each of the Material Contracts is in full force and effect. Each Material Contract , and is the valid, binding and (or descriptionin accordance with its terms) sets forth the entire agreement and understanding (or complete description enforceable obligation of the material terms, as applicable), between Companies and the Company, on one handSubsidiaries, and to Seller’s Knowledge, of the other parties thereto, on except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws affecting creditors’ rights generally and general principles of equitable relief, (iii) Seller, the other hand, Companies and the Subsidiaries have performed all respective obligations required to be performed by them to date under the Material Contracts and are not (with respect to or without the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or the giving of notice, or both) in breach thereunder, would constitute an event (iv) none of default under any Material Contract or result in a termination thereof or would cause or permit Seller, the acceleration or other changes of any right or obligation Companies or the loss of any benefit thereunder. The Company Subsidiaries has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent breach, default or event that with notice or lapse of time, or both, would constitute a default by any person with respect to, and, to Seller’s Knowledge, no party has threatened in writing to terminate any, Material Contract and (v) none of Seller, the Companies or the Subsidiaries has received any written notice threatening or invoking legal action in accordance with the performance by any party to the Companies and the Subsidiaries of their respective obligations under any Material Contract.
(d) The Except as set forth on Schedule 4.12(d), and except as otherwise contemplated by or in respect of the Affiliate Support Arrangements and the Company has no Liability for Supported Arrangements, all rights of Seller under the deferred purchase price Material Contracts will be assigned to one or more of property, goods the Companies or services, whether connected or not to the acquisition Subsidiaries and the Companies and the Subsidiaries shall have assumed all obligations of any business (earn-out or other similar type of payments) or noncompetition agreementSeller thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Set forth on Schedule sets forth 3.8, is a true, complete and correct list of each all of the following Contracts to which the Company Seller is a party or by which it is bound:
(a) all Contracts relating to the Company is bound employment of any person, and all bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, phantom stock, retirement, severance benefits retirement, stock appreciation and other employee benefit plans;
(b) all Contracts with Suppliers or otherwise relating to the sale or distribution of inventory or goods or relating to the representation by Seller of Suppliers or manufacturers or distributors;
(c) all Contracts with customers (including all hospitals and medical facilities) that provide for annual payments in excess of $25,000, including any written terms and conditions which have not been entirely fulfilled are included in purchase orders or performed govern or apply to purchases by any customer;
(such d) all Contracts relating to capital expenditures;
(e) all guarantees and other contingent liabilities with respect to any indebtedness or obligation of any other Person (other than the endorsement of negotiable instruments for collection in the ordinary course of business);
(f) all management services, consulting and any other similar type Contracts, collectively, ;
(g) all leases of personal property that provide for annual payments in excess of $10,000;
(h) all Contracts limiting the “Material Contracts”):freedom of Seller to engage in any line of business or to compete with any other Person;
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors not entered into in the Ordinary Course ordinary course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xiij) all Affiliate ContractsContracts which involve the receipt of or expenditure by Seller of more than $25,000 in any one year;
(xiiik) any Company IP Agreements license agreement (as well as any Contract under which the Company is a party providing for the license of licensor or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee);
(xivl) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limitshareholder, in any material respectmanager, the ability director, officer or employee of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ noticeSeller; and
(xxm) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such all other Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the Business or operation of the business Purchased Assets. Each Contract set forth on Schedule 3.8 is a valid and binding agreement of Seller and, to Seller's Knowledge, of all other parties thereto and is in full force and effect and enforceable in accordance with its terms. Except as set forth on Schedule 3.8, Seller has no written Contracts with Suppliers or customers. Seller has not violated any of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with terms or conditions of any of the terms and provisions of each Material Contract. The CompanyContracts set forth on Schedule 3.8, and and, to the Knowledge of Seller, all of the Companyterms and conditions to be performed by any party thereto other than Seller have been fully performed. Except as set forth on Schedule 3.8, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, there exists no default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract of the Contracts set forth on Schedule 3.8 or result in a termination thereof event, occurrence, condition or would cause act (including the purchase of the Purchased Assets hereunder) which, with the giving of notice, the lapse of time or permit the acceleration or other changes happening of any right other event or obligation condition, would become a default or the loss event of any benefit default thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Material Contracts. (a) Except for this Agreement, Section 4.10(a4.18 of the Company Disclosure Letter contains a complete and correct list, as of the date of this Agreement, of each Contract described below in this Section 4.18(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date of this Agreement other than Company Benefit Plans listed on Section 4.11(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each Letter (all Contracts of the following Contracts type described in this Section 4.18(a) being referred to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, herein as the “Material ContractsContract”):
(i) all Contracts each Contract that contain restrictions with limits in any material respect to payment the freedom of dividends the Company or any other distribution of its Subsidiaries to compete in respect any line of business, therapeutic area or geographic region, or with any Person, including any Contract that requires the Membership Units Company and its Subsidiaries to work exclusively with any Person in any therapeutic area or other Equity geographic region, or which by its terms would so limit the freedom of Parent and its affiliates after the CompanyFirst Effective Time;
(ii) (A) any Contract providing for a partnership entity or joint venture entity, and (B) other than any Excluded Contract, any strategic alliance, collaboration, co-promotion or research and development project Contract, which, in the case of clause (B), is material to Company and its Subsidiaries, taken as a whole;
(iii) each acquisition or divestiture Contract or material licensing agreement that by its terms requires contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the payment by receipt or on behalf making of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive future payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors 10,000,000 in the Ordinary Course of Businesstwelve (12) or advance to (other than travel and entertainment advances to month period following the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000date hereof;
(iv) any Contract that (i) requires under which the Company or any Company Subsidiary is granted any license, option or other right (including a covenant not to purchase be sued or right to enforce or prosecute any product or service in excess patents) with respect to any Intellectual Property of $100,000 from a third party or (ii) requires that party, which Contract is material to the Company deal exclusively with and the Company Subsidiaries, taken as a third party in connection with the sale or purchase of any product or servicewhole, other than Excluded Contracts;
(v) any Contract that relates under which the Company or any Company Subsidiary has granted to an acquisition or divestiture of material assets that contains covenantsa third party any license, indemnities option or other contractual obligations that could impose right or immunity (including a Liability that covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property, which Contract is material to the CompanyCompany and the Company Subsidiaries, taken as a whole, other than Excluded Contracts;
(vi) any Contract under involving the settlement of any claim, action or proceeding or threatened claim, action or proceeding (or series of related, claims actions or proceedings) (A) which (x) may involve payments after the Company has date hereof, or involved payments, in excess of $5,000,000 or (y) may impose, or imposed, monitoring or reporting obligations to any outstanding Indebtedness other Person outside the ordinary course of business or evidencing an Encumbrance material restrictions on Parent or any property Parent Subsidiary or asset of (B) with respect to which material conditions precedent to the Company, other than a Permitted Encumbrancesettlement have not been satisfied;
(vii) all Contracts under each Contract not otherwise described in any other subsection of this Section 4.18(a) pursuant to which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company or any Company Subsidiary (A) is obligated to pay, or entitled to receive, payments in excess of $50,00010,000,000 in the twelve (12) month period following the date hereof, or (B) has paid, or has received, payments in excess of $2,000,000 in fiscal year 2014, in each case, which cannot be terminated by the Company or such Company Subsidiary on less than sixty (60) days’ notice without material payment or penalty, other than ordinary course product or active ingredient purchase contracts;
(viii) each Contract relating to outstanding Indebtedness (or commitments in respect of Indebtedness) of the Company or the Company Subsidiaries for borrowed money or any bonds financial guaranty thereof (whether incurred, assumed, guaranteed or Contracts secured by any asset) in an amount in excess of Guarantee in $5,000,000 or relating to any interest rate, currency or commodity derivatives or hedging transactions for which the aggregate exposure is reasonably expected to be in excess of $5,000,000, other than (A) Contracts solely among the Company acts as a and any wholly owned Company Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with past practice not exceeding $2,500,000, individually or in the aggregate (other than surety or guarantor performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with respect past practice in each case to the extent not drawn upon), and (C) any obligation (fixed or contingent) of another PersonContracts relating to Indebtedness explicitly included in the consolidated financial statements in the Company SEC Documents;
(ix) all Contracts involving each Contract between the Company or any joint ventureCompany Subsidiary, partnershipon the one hand, strategic allianceand any officer, shareholders’ agreementdirector or affiliate (other than a wholly owned Company Subsidiary) of the Company or any 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), co-marketingon the other hand, co-promotionincluding any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, joint development director, affiliate or similar arrangementfamily member, but not including any Company Benefit Plans;
(x) all Contracts involving any resolution material collective bargaining agreement or settlement of other material Contract with any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datelabor union;
(xi) any Contract limiting or restraining that involves the payment by the Company or a Company Subsidiary of any successor thereto from engaging royalties or competing in any manner, in any location or in any businessmilestone payments;
(xii) all Affiliate Contracts;any Contract relating to an Acquisition Proposal or a potential Acquisition Proposal executed prior to the date of this Agreement that includes a standstill provision that does not, by its terms, terminate upon the execution of this Agreement; and
(xiii) any Company IP Agreements Contract not otherwise described in any other subsection of this Section 4.18(a) that would constitute a “material contract” (as well as any Contract under which such term is defined in Item 601(b)(10) of Regulation S-K of the Company is a party providing for the license of or settlement SEC) with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The True, correct and complete copies of each Material Contract have been made available to Parent prior to the date hereof. Neither the Company nor any Company Subsidiary is in material compliance with breach of or default under the terms and provisions of each any Material Contract, or has received any written notice alleging that the Company or any Company Subsidiary is in material breach or default under the terms of any Material Contract. The Company, and to To the Knowledge knowledge of the Company, as of the date hereof, no other party to any Material Contract is not in breach of or default under the terms of any Material Contract where such breach or default under any of its termswould reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Except as would not reasonably be expected to have, individually or in the aggregate, a Company has not received notice of any breachMaterial Adverse Effect, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) a valid and binding obligation of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on or the Company Subsidiary which is party thereto in accordance with its respective terms and, to the knowledge of the Company, of each other party thereto, and (ii) is in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect subject to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractEnforceability Limitations.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(aSchedules 3.18(a)(i)-(xiv) of the Company Disclosure Schedule sets forth a trueSchedules list each written or oral Contract (x) since January 1, complete and correct list of each of the following Contracts 2011 to which the Company or any of its Subsidiaries is a party or (y) by which the Company or any of its Subsidiaries or their respective properties or assets is currently bound with ongoing obligations (other than obligations solely as a result of ongoing confidentiality obligations) and identifies which have not been entirely fulfilled or performed subparagraph is applicable to such Contract (such Contracts, collectively, the contracts and agreements as described in this Section 3.18(a) being “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by (or on behalf group of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (related Contracts), other than accounts receivable owing from trade debtors in the Ordinary Course of Businessemployment Contracts, which is not terminable on less than ninety (90) or advance to (other than travel days’ notice and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual involves future obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than its Subsidiaries or its employees in a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company dollar amount in excess of $50,000;
(ii) any employment Contract (A) providing annual compensation in excess of $100,000, or (B) that it is not terminable at will on notice of thirty (30) days or less without payment of any severance;
(iii) any Contract that involves future obligations of the Company in excess of $50,000 with sales agents, sales representatives, sales brokers or distributors;
(iv) any partnership, joint venture agreement, development, joint development or similar arrangement which is material to the Company or its Subsidiaries taken as a whole;
(v) any Contract for the borrowing or lending of money and any guaranty agreement or other evidence of indebtedness, including Capitalized Lease Obligations;
(vi) any Contract granting any Person an Encumbrance on any of the material assets of the Company or any of its Subsidiaries;
(vii) any Contract involving a dollar amount in excess of $50,000 providing for the license of any Intellectual Property to or from the Company or any of its Subsidiaries;
(viii) any bonds or Contracts Contract involving a dollar amount in excess of Guarantee in which $50,000 containing any provisions requiring the Company acts as a surety or guarantor with respect to indemnify any obligation (fixed or contingent) of another Personother party thereto;
(ix) all Contracts involving any joint ventureContract pursuant to which the Company or any of its Subsidiaries or any current or future Affiliate of any of them is or would be restricted from conducting the business of the Company or any of its Subsidiaries or any current or future Affiliate of any of them in any material respect at any time, partnershipin any manner or at any place in the world, strategic allianceor the expansion thereof to other geographical areas, shareholders’ agreementcustomers, co-marketingsuppliers or lines of business, co-promotion, joint development or that grants the other party or any third person “most favored nation” or similar arrangementstatus, except for the following insofar as they do not impose the foregoing restrictions on the Company’s or any of its Subsidiaries’ right to conduct or expand their business (and only restrict such right with respect to the other party or parties thereto) (A) the Company’s employment agreements in the form previously furnished to Acquiror, (B) the Company’s standard independent contractor agreements in the form previously furnished to Acquiror and (C) the Company’s standard separation statement for departing employees substantially in the form previously furnished to Acquiror;
(x) all Contracts involving any resolution or settlement Contract of any actual character (contingent or threatened Action under otherwise) pursuant to which any employee or consultant is or may be entitled to receive any payment based on the revenues, earnings or financial performance or assets of the Company has or any obligation of its Subsidiaries or Liability that will continue after the Closing Datecalculated in accordance therewith;
(xi) any agency Contract limiting or restraining whereby the Company purports to grant a right to market or sell its products or any successor thereto from engaging agency Contract affecting the Company’s or competing in any mannerof its Subsidiaries’ exclusive right to develop, in any location market or in any businesssell its products;
(xii) all Affiliate Contracts;any Contract pertaining to any customer of the Company or any of its Subsidiaries which represents more than 5% of the Company’s revenues in any of the last three (3) fiscal years or any Contract with an independent warehouse used by the Company or any of its Subsidiaries which is material to the Company or its Subsidiaries; 52
(xiii) any Company IP Agreements as well as any Contract under which Contracts that contain unlimited indemnification obligations by the Company is or any of its Subsidiaries or that does not contain a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, limitation on the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee's liability;
(xiv) Contracts with any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the CompanyGovernmental Authority;
(xv) all collective bargaining agreements entered into by Any Contract that relates to the Companysettlement of any Action or any legal proceeding;
(xvi) any Contract providing that with material suppliers to the Company indemnify or any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;its Subsidiaries; or
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material would be required to be filed with the operation of the business of SEC as an exhibit to a registration statement on Form S-1 if the Company and not otherwise disclosed pursuant to this Section 4.10(a)or such Subsidiary were registering securities under the Securities Act.
(b) The Company has made available to Acquiror true and complete copies of all Material Contracts and all amendments thereto. Each Material Contract (i) is in material compliance with valid and binding on the terms and provisions of each Material Contract. The CompanyCompany or the applicable Subsidiary, and as the case may be, and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect, enforceable against the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, against all third parties, in each case 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); and (ii) shall continue in full force and effect upon consummation of the transactions contemplated by this Agreement, enforceable against the Company or a Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, against all third parties, 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). None of the Company or any of its Subsidiaries is in breach of, or default (with or without the giving of notice, with lapse of time or both) under, any Material Contract. To the Knowledge of the Company, no other party to any Material Contract is not in breach or default under any thereunder, nor, to the Knowledge of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and does any condition exist that with the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, both would constitute an event of a default under by any such other party thereunder, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Contract or result in a termination thereof or would cause or permit the acceleration or Adverse Effect. No other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and has (i) notified the Company has not received that such other party intends to cancel or otherwise terminate such Material Contract or (ii) since December 31, 2013, taken any notice action or threatened to take any action, with respect to seeking a repayment of termination amounts paid to the Company or intent any of its Subsidiaries pursuant to terminate by such Material Contract or a reduction in fees or other payments that will become due to the Company or any party of its Subsidiaries pursuant to any such Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Except as set forth on Schedule 3.11, as of the date of this Agreement, neither the Company Disclosure Schedule sets forth nor any of its Subsidiaries is a true, complete and correct list of each party to any of the following Contracts to which the Company is a party agreements or by which the Company is bound and which have not been entirely fulfilled or performed contracts (such Contracts, collectively, the “Material Contracts”excluding any Plan disclosed in Schedule 3.15):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units collective bargaining agreements or other Equity of the Companycontracts with any labor union, works council or other labor organization (each, a “CBA”);
(ii) stockholder agreements, investors’ rights agreements, voting agreements, voting trusts, right of first refusal and co-sale agreements, or registration rights agreements;
(iii) agreements under which the Company or one of its Subsidiaries has borrowed any Contract that by money or issued any note, indenture or other evidence of indebtedness or guaranteed liabilities of others (other than intercompany indebtedness for borrowed money solely among the Company and its terms requires the payment by or on behalf Subsidiaries, guarantees of indebtedness for borrowed money of the Company or any of its Subsidiaries, endorsements for the purpose of collection or purchases of equipment or materials made under conditional sales agreements, in each case in the ordinary course of business), in each case, having an outstanding principal amount in excess of $500,000;
(iv) contracts for the purchase or sale of goods or services by or (solely with respect to subclause from any of the Company or its Subsidiaries under which the Company or any of its Subsidiaries expects to receive or pay in excess of $250,000 during the current calendar year;
(v) each Government Contract awarded to the Company with a period of performance that has not yet expired and for which it is estimated will generate total revenues in excess of $100,000 per annum or the delivery by the Company of goods or services with in any one (1) year period (each, a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business“Material Government Contract”), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) except as set forth on Schedule 3.11(vii), contracts relating to any Contract single or series of related capital expenditures by the Company pursuant to which any member of the Company Group has future financial obligations in excess of $250,000;
(vii) contracts under which the Company has made advances or loans to any outstanding Indebtedness or evidencing an Encumbrance on any property or asset other Person, except for advances of business expenses of up to $10,000 in the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness ordinary course of the Company in excess of $50,000business;
(viii) any bonds contracts that restrict, limit or Contracts of Guarantee in which otherwise prohibit the Company acts as a surety from making dividends or guarantor with respect distributions to any obligation (fixed or contingent) of another Personits equityholders;
(ix) contracts granting any Person a material Lien on all Contracts involving or any joint venturepart of the material assets of the Company or its Subsidiaries, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development other than Liens which will be released in full at or similar arrangementprior to the Closing and Permitted Liens;
(x) all Contracts license of any material Intellectual Property (whether granted by or to the Company or any of its Subsidiaries), which license involves payments (by or to the Company or any of its Subsidiaries) in excess of $500,000 per annum and is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less for a cost of $500,000 or less (other than licenses of commercially available, off‑the‑shelf software and licenses entered into in the ordinary course of business);
(xi) leases or other agreements under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $500,000 that is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less for a cost of $500,000 or less;
(xii) leases or other agreements under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $500,000 that is not terminable by the Company or such Subsidiary upon notice of sixty (60) days or less for a cost of $500,000 or less;
(xiii) agreement with any director, officer, employee or Contingent Worker that (A) involves aggregate annual compensation in excess of $150,000 for such Person; (B) involves any severance, change of control, retention or similar type of payment; or (C) is not terminable by the Company upon less than thirty-one 31 days’ notice;
(xiv) agreement (excluding any purchase orders and change orders) with a Key Supplier or a Key Customer;
(xv) agreements that purport to (A) limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries from freely engaging or competing in any geographical area, market or line of business anywhere in the world, (B) materially restrict the Persons to whom the Company, its Subsidiaries or any of its existing or future Affiliates, including Buyer, may sell products or deliver services, (C) materially restrict the Persons the Company, its Subsidiaries or Affiliates, including Buyer, may hire or solicit for hire, or (D) otherwise materially restrict the Company, its Subsidiaries or Affiliates, including Buyer, from engaging in any aspect of its business;
(xvi) agreements that grant to any Person other than Company, its Subsidiaries or any of its existing or future Affiliates any (A) exclusive license, supply, distribution or other rights, (B) “most favored nation” rights, (C) rights of first refusal, rights of first negotiation or similar rights or (D) exclusive rights to purchase any of the Company’s or its Subsidiaries’ products or services;
(xvii) distributor, reseller, sales representative, marketing or advertising contracts;
(xviii) agreements relating to any acquisition or disposition by the Company or any of its Subsidiaries of any assets, rights or properties of the Company or any of its Subsidiaries or any merger, consolidation or similar business combination transaction pursuant to which the Company or any of its Subsidiaries has (A) any unfulfilled obligation to pay any purchase price thereunder in excess of $500,000 or (B) any deferred purchase price, “earn‑out”, purchase price adjustment or similar contingent purchase price payment obligation;
(xix) agreements that involves any take‑or‑pay or requirements arrangement other than in the ordinary course of business;
(xx) agreements relating to any joint venture, partner or similar agreement, including any agreement involving a sharing of the profits, losses, costs or liability of the Company or its Subsidiaries with any other Person;
(xxi) agreements involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining Proceeding involving the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement its Subsidiaries with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability outstanding payment obligations of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount its Subsidiaries in excess of $100,000100,000 or any material ongoing requirements or restrictions on the Company or its Subsidiaries;
(xxii) agreements that provide for any material price reductions, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term any credit note or credit memorandum outside of the lease, not including any option term)ordinary course of business; andor
(xxixxiii) agreement in writing to enter into any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)foregoing.
(b) The Each of the agreements listed or required to be listed on Schedule 3.11 (the “Material Contracts”) and each of the Leases is in full force and effect and is a valid, binding and enforceable obligation of the Company and its Subsidiaries, and, to the knowledge of the Company, each of the other parties thereto. Neither the Company nor any of its Subsidiaries, as applicable, is in material compliance default (with or without notice or lapse of time or both), or is alleged in writing by the terms and provisions of each counterparty thereto to have breached or to be in material default, under any Lease or any Material Contract. The Company, and and, to the Knowledge knowledge of the Company, the other party to any each Lease or each Material Contract is not in breach material default (with or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with without notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit time) thereunder. The Company has no reason made available to believe Buyer complete and correct copies of all Material Contracts and all Leases, together with all modifications, amendments and supplements thereto. None of the Material Contracts or any party of the Leases has been cancelled or otherwise terminated (except for expirations pursuant to any Material Contract will not fulfill its obligations thereunder in all material respectsthe terms thereof and terminations requested by the Company), and neither the Company nor its Subsidiaries has not received any written notice of termination from any Person regarding any such cancellation or intent to terminate by any party to any Material Contracttermination.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Seller Disclosure Schedule Letter sets forth a true, complete and correct list as of the date of this Agreement of each of the following Contracts Contract to which the Company is a party or by which the Company it is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):otherwise bound:
(i) all Contracts that contain restrictions with respect to payment for the purchase, sale or lease (whether as lessor or lessee) of dividends real property or any other distribution in respect of the Membership Units option to purchase or other Equity of the Companysell real property;
(ii) for capital expenditures and purchase of associated materials of more than $50,000 for any Contract that by its terms requires the payment by project or on behalf series of the Company in excess related projects then ongoing (or groups of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumrelated Contracts therefor);
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in providing for the Ordinary Course of Business) acquisition or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making disposition of any such loanassets, advance or investment in excess of each case involving more than $25,000;
(iv) any Contract that (i) requires related to the Company licensing of Third Party Intellectual Property, other than commercially available software licensed under a shrink-wrap or click-through license agreement, material to purchase any product or service in excess the operation of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceBusiness as presently conducted;
(v) any Contract that relates relating to an acquisition or divestiture Indebtedness of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete engage in any line of business or compete with any Person or in any geographic area or during any period of timePerson;
(xixvii) all between the Company and any of the Company’s Affiliates or Affiliated Persons;
(viii) with any (i) employment current officer, manager or employee of the Company including agreements (excluding, for certainty, any employees who are employed at will) and relating to the payment of Stay Bonuses or (ii) Contracts with independent contractors former officer, manager or consultants (or similar arrangements) to employee of the Company for which the Company is has continued obligations;
(ix) granting or evidencing a party Lien (other than Permitted Encumbrances) on any assets owned by the Company and used in the Business;
(x) involving a loan or advance to, or investment in, any Person, other than in the ordinary course of business;
(xi) under which are not cancellable without material penalty any Person guarantees Indebtedness of the Company;
(xii) that by its terms (A) calls for aggregate payments or without receipt by the Company under such Contract of more than ninety $25,000 on an annual basis or which Seller or the Company reasonably anticipates will involve the payment or receipt by the Company of more than $25,000 on an annual basis and (90B)(1) extends beyond the one year anniversary date of this Agreement, or (2) cannot be terminated with less than 90 days’ notice; and
(xxxiii) creating a joint venture, limited liability company or partnership with any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Person.
(b) The Company is Except for purchase orders in material compliance with the terms and provisions ordinary course of business, copies of each Material Contract. The Company, and Contract required to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth be listed in Section 4.10(a) of the Company Seller Disclosure Schedule.
(cLetter or each contract entered into after the date of this Agreement of the type described in Section 4.10(a)(each, a “Material Contract”) have been or, in the case of Material Contracts entered into after the date of this Agreement, will be made available to Buyer. Each Material Contract is (i) valid and binding on upon the Company party and, to Seller’s Knowledge, on all other parties thereto in accordance with its respective terms and (ii) terms. To Seller’s Knowledge, each Material Contract is in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between effect with regard to the Company, on one handand there is no actual, and alleged or threatened material breach or violation of or default by the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default Company under any of the Material Contract Contracts. To Seller’s Knowledge, there is no current or result in a termination thereof threatened breach, violation of or would cause or permit default by any other Person under any of the acceleration or other changes of any right or obligation or the loss of any benefit thereunderMaterial Contracts. The Company has no reason to believe is, as of the date of this Agreement, not renegotiating any party to any of the Material Contract will not fulfill its obligations thereunder Contracts, except in all material respects, and the Company has not received any notice ordinary course of termination or intent to terminate by any party to any Material Contractbusiness.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Interest Purchase Agreement (Full House Resorts Inc)
Material Contracts. (a) Section 4.10(aSchedule 3.11(a) sets forth as of the Company Disclosure Schedule sets forth date of this Agreement a true, complete and correct list of each of the following Contracts to which the Company a VIH Entity is a party and that primarily relate to the Business or by to which the Company or one of its Subsidiaries is bound and which have not been entirely fulfilled or performed a party (collectively with any such Contracts, collectivelyContract entered into after the date of this Agreement, the “Material Contracts”):), true and complete copies of which Sellers have made available to Purchasers prior to the date of this Agreement:
(i) all Contracts that contain restrictions with respect each purchase agreement or lease relating to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the CompanyTransferred Helicopters;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company each Equipment Lease which entails annual rental payments in excess of $100,000 per annum or $1,000,000 in the delivery by the Company of goods or services aggregate;
(iii) each Contract with a fair market value in excess Company Employee requiring payments of $100,000 per annum salary and annual performance bonus or provides for the Company to receive payments any other compensation in excess of $100,000 per annum;
(iiiiv) all Contracts involving each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee in respect of obligations in excess of $100,000, or relating to a loan Transferred Helicopter or Owned Real Property;
(other than accounts receivable owing from trade debtors v) each Contract expected to result in payment to the applicable VIH Entity in excess of $100,000 per annum or $1,000,000 in the Ordinary Course of Businessaggregate;
(vi) or advance to (other than travel and entertainment advances to the employees each Contract with vendors of the Company extended Business expected to result in payment by the applicable VIH Entity in excess of $100,000 per annum or $1,000,000 in the Ordinary Course aggregate;
(vii) each Real Property Lease;
(viii) each Contract (A) materially restricting the ability of Business)any VIH Entity to engage in any business, or investment in, compete with any Person or solicit any customer or any Person for employment, (B) that could require the disposition of any material assets, line of business or product line of any VIH Entity, (C) granting “most favored nation” status to any Person, or (D) providing for a material indemnification obligation by any VIH Entity, other than indemnification arrangements with customers, suppliers or manufacturers entered into in the ordinary course of business consistent with past practice;
(ix) each Contract creating a joint venture, partnership, profit sharing or similar relationship with any Person;
(x) any agreement relating to the making acquisition or disposition of the Business (whether by merger, sale of shares, sale of assets or otherwise), (A) entered into by any such loanVIH Entity on or after January 1, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party 2008 or (iiB) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has VIH Entities will have any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor obligation with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, coan “earn-marketing, co-promotion, joint development out,” contingent purchase price or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datecontingent payment obligation;
(xi) any Contract limiting that restricts the declaration, set aside or restraining the Company payment of any dividends or any successor thereto from engaging or competing in any mannerdistributions on, in any location or in respect of, shares or other equity interests of any businessVIH Entity;
(xii) all Affiliate Contractseach collective bargaining agreement or other Contract with a labor union, labor organization, workers council or similar body;
(xiii) any Company IP Agreements as well as any Contract under pursuant to which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, material to the Company’s Intellectual Property Business (other than commercially available software and hardwaresoftware) and any Intellectual Property license agreements under which is licensed to the Company is currently a licenseeBusiness or the VIH Entities);
(xiv) any Contract concerning the acquisitionthat contains a put, dispositioncall or similar right pursuant to which any VIH Entity could be required to purchase or sell, occupancyas applicable, management or operation any equity interests of any Real Property owned, leased Person or used by the Companyassets that have a fair market value or purchase price of more than $100,000;
(xv) all collective bargaining agreements entered into by any written Contracts between Sellers or their Affiliates or Associates (excluding the CompanyCompany and its Subsidiaries), on the one hand, and the Company or its Subsidiaries, on the other hand, including any Contracts where Sellers or their Affiliates or Associates have guaranteed any third-party obligation of the Company or its Subsidiaries;
(xvi) any Contract Contracts providing that the Company indemnify for any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course sharing of Business;revenues or similar arrangements; and
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material related to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Excluded Business.
(b) The Company is in material compliance with the terms and provisions of Except as set forth on Schedule 3.11(b) each Material Contract. The CompanyContract is a valid, binding and enforceable obligation in accordance with its terms of the applicable VIH Entity or its Affiliates, and, to the Knowledge of the CompanySellers, of the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breachparties thereto, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms terms, and (ii) in full force and effect. Each The VIH Entities have not received as of the date of this Agreement any written notice from any other party to any such Material Contract (that such third party intends to terminate or descriptionnot renew any such Material Contract. Except as set forth on Schedule 3.11(b), there exists no default or event of default by the applicable VIH Entity or, to the Knowledge of Sellers, any other party to any such Contract with respect to any material term or provision of any such Contract. No third party to a Material Contract described in Section 3.11(a)(iv) sets forth the entire agreement has declared Indebtedness owing to it in connection with such Material Contract to be immediately due and understanding (payable or complete description otherwise exercised remedies in respect of any default thereunder, nor given notice of its intent to do either of the material terms, as applicable), between the Company, on one hand, foregoing.
(c) The Contracts set forth in Schedule 3.11(c) have been validly terminated and the other Settlement Agreement referred to in Schedule 3.11(c) (i) has been duly authorized, executed and delivered by all parties thereto, on the other hand(ii) is a legal, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or valid and binding obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsof, and enforceable against, each of the Company has not received any notice of termination or intent parties thereto in accordance with its terms, and (iii) is in full force and effect. All payments due from Sellers under the Agreement to terminate by any party Settle referred to any Material Contractin Schedule 3.11(c) have been made.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Bristow Group Inc)
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule 4.21 sets forth a true, true and complete and correct list of each all Contracts and other instruments (with the exception of the following Contracts License Agreements listed on Schedule 4.19(b)) to which the Company each Thane Entity is a party that are material to the business, operations, properties, prospects or by which the Company is bound and which have not been entirely fulfilled or performed financial condition of any of them (such Contracts, collectively, the “Material Contracts”):"Thane Commitments"), including without limitation:
(i) all Contracts that contain any material agreement, Contract or commitment relating to the employment of any Person by any Thane Entity, or any bonus, deferred compensation, pension, profit sharing, Option, employee stock purchase, retirement or other employee benefit plan;
(ii) any material agreement, indenture or other instrument which contains restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Companyits capital stock;
(iiiii) any agreement, Contract that by its terms requires the payment by or on behalf of the Company commitment relating to capital expenditures in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumany fiscal year;
(iiiiv) all Contracts involving a any agreement to acquire, directly or indirectly, any equity interest in or assets of any other Person (other than purchases of supplies, inventory, or equipment in the ordinary course of business) whether or not the transactions contemplated thereby have been consummated, and under which an Thane Entity continues to have any outstanding obligations;
(v) any loan (other than accounts receivable owing from trade debtors arising in the Ordinary Course ordinary course of Businessbusiness) or advance to (other than travel and or entertainment advances to the employees of the Company extended made in the Ordinary Course ordinary course of Businessbusiness), or investment Investment in, any Person or any agreement agreement, Contract or commitment relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the CompanyInvestment;
(vi) any Contract under which the Company has any outstanding agreement relating to Indebtedness or evidencing an Encumbrance on any property or asset in excess of the Company, other than a Permitted Encumbrance$100,000;
(vii) all Contracts under which any guarantee or other contingent liability in respect of any Indebtedness or obligation of any other Person (other than the Companyendorsement of negotiable instruments for collection in the ordinary course of business) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000100,000;
(viii) any bonds material management service, consulting, financial advisory or Contracts of Guarantee in which the Company acts as a surety any other similar type Contract including, without limitation, any Contract with any investment or guarantor with respect to any obligation (fixed or contingent) of another Personcommercial bank;
(ix) all Contracts involving any material agreement, Contract or commitment limiting the ability of any Thane Entity to engage in any line of business or to compete with any Person;
(x) any agreement, Contract or commitment which involves payments in excess of $100,000 in any calendar year and is not cancelable without penalty within thirty (30) days;
(xi) any agreement, Contract or commitment for the disposal of a material amount of assets or properties of any Thane Entity (other than sales to customers in the ordinary course of business);
(xii) any agreement, Contract or commitment which is material to any Thane Entity and contain a "change in control" or similar provision;
(xiii) any agreement, Contract or commitment relating to any material joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development alliance or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any material agreement, Contract concerning the acquisition, disposition, occupancy, management or operation of commitment with any Real Property owned, leased or used by the CompanyAffiliate;
(xv) all collective bargaining any source code agreements entered into by the Company;with third parties; and
(xvi) any other material agreement, Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)commitment.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is Except as set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract on Schedule 4.21, each Thane Commitment is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effecteffect on the date hereof. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description No Thane Entity is in default in respect of the material terms, as applicable), between the Company, on one handany Thane Commitment, and the other parties thereto, on the other handno event has occurred which, with respect to the subject matter thereof. No event or circumstance has occurred that, with due notice or lapse of time or both, would constitute an event such a default, except for any such defaults that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Knowledge of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or Thane, no other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder of the Thane Commitments is in all material respectsdefault in respect thereof, and the Company no event has not received any occurred which, with due notice or lapse of termination time or intent to terminate by any party to any Material Contractboth, would constitute such a default.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Reliant Interactive Media Corp)
Material Contracts. (a) Section 4.10(a3.10(a) of the Company Seller Disclosure Schedule Letter sets forth a true, true and complete and correct list of the Contracts with any party other than (x) Seller and its Affiliates or (y) except with respect to clauses (iii) and (iv) below, any original equipment manufacturer or supplier to the Business, that are (in each case) primarily related to the Acquired Business (provided, with respect to clause (i) below, solely to the extent relating to an Assigned Contract and, with respect to clauses (iii) and (iv) below, including with respect to any Contract with original equipment manufacturers or suppliers to the Business that relates to the Acquired Business) and that provide for any of the following Contracts to following, in each case, which are in effect as of the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed date hereof (such Contracts, collectivelytogether with any Contract which, had it been entered into prior to the date hereof, would have been required to be listed on Section 3.10(a) of the Seller Disclosure Letter, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment any covenant expressly prohibiting or materially restricting the ability of dividends Seller or any other distribution in respect of its Affiliates to conduct the Membership Units Acquired Business, limiting or other Equity purporting to limit Seller or any of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)Affiliates, or investment in, any Person which following the Closing would limit or purport to limit Purchaser or any agreement relating to the making of any such loanits Affiliates, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenantseach case, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging in any material line of business or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with material respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time, providing for any exclusivity obligations, granting any exclusive rights to products or services, obligating the Acquired Business or any counterparty to purchase or obtain a minimum or specified amount (other than where such amount is less than $5,000,000 (or equivalent) per annum) of any product or service, or granting any right of first refusal, right of first offer or similar right with respect to any material assets of the Acquired Business;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors any annual payment or consultants (annual receipt of royalties or similar arrangementspayments of more than $5,000,000 in the aggregate;
(iii) annual payments or consideration furnished (A) to which the Company is Acquired Business in excess of $5,000,000 or (B) by the Business in excess of $50,000,000, in each case, in the 12-month period ended September 30, 2016;
(iv) any Contract with any of the Material Counterparties (other than Seller and its Affiliates or the SHO Group) providing for annual payments or consideration in excess of $1,000,000;
(v) any grant of a right or license (A) by a third party and which are not cancellable without material penalty in favor of Seller or without more than ninety any of its Affiliates to Acquired Business Intellectual Property, or (90B) days’ noticeby Seller or any of its Affiliates in favor of any third party to Acquired Business Intellectual Property, in each case under a Contract involving annual payments in excess of $5,000,000; and
(xxvi) any Contract to purchasematerial joint venture, lease strategic alliance, partnership or otherwise acquire the right to own, use similar arrangement involving a sharing of profits or lease any property expenses of payments based on revenues or assets, including such Contracts entered into by an Affiliate profits of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Acquired Business.
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Other than Contracts related to employee benefits, which are provided for in Section 4.10(a) of the 3.13, Lease Agreements, Company Disclosure Leases and Real Estate Contracts, which are provided for in Section 3.15, and Contracts related to Intellectual Property or IT Assets, which are provided for in Section 3.16, Schedule 3.17 sets forth a true, complete true and correct list of each of the following (i) all Assigned Contracts or Contracts to which the any Company is a party that (A) involve the sale or purchase of goods or tangible assets and are reasonably likely to involve the payment or receipt of more than $500,000 per year, and (B) involve the sale or purchase of services or intangible assets and are reasonably likely to involve the payment or receipt of more than $250,000 per year; (ii) all partnership, joint venture or similar Contracts that are Assigned Contracts or to which a Company is party, in each case that involve the ownership or operation of any business with any other Person; (iii) all Assigned Contracts and any Contract to which a Company is party, in each case with a term of more than one year that cannot be cancelled by such Asset Seller or Company on less than 90 days’ notice without premium or penalty that are reasonably likely to involve the payment or receipt of more than $500,000 per year; (iv) all Contracts obligating any Company to loan any amounts to or make any investment or capital contribution in any Person; (v) all Contracts relating to the borrowing of money by any Company or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the Purchased Assets or on any portion of the assets of a Company; (vi) any guaranty of any Company of any obligation for borrowed money, letter of credit or other guaranty of an obligation in excess of $50,000, or in the aggregate in excess of $250,000; (vii) except for Contracts for the employment of Persons employed by the Chihuahua Sub, the Monclova Sub or the Saltillo Sub, the execution of which are required by the Laws of Mexico, all Contracts for the employment of any officer, individual employee or other Person with a Company on a full-time or consulting basis or, with respect to the Asset Sellers, with a Business Employee; (viii) all Contracts that contain any provision or covenant that prohibit or limit the ability of an Asset Seller or Company from engaging in any line of business, to compete with any Person or to carry on or expand the scope of the Business (or with respect to a Company, any business) in any geographic area; (ix) all Contracts that contain any provision or covenant that would, upon Closing, prohibit or materially limit the ability of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or materially limit the ability of any Person to compete with Purchaser or any of its Affiliates; (x) all Contracts under which a Company or, with respect to or in connection with the Business, an Asset Seller is the lessee of, or holds or operates any personal property owned by any other Person, for which the annual rental exceeds $100,000; (xi) all Contracts under which an a Company or, with respect to or in connection with the Business, an Asset Seller is the lessor of, or permits any Person to hold or operate any property, real or personal, for which the annual rental exceeds $100,000; (xii) all Contracts relating to the Business or to which a Company is bound party with, or bids or proposals of the Business or a Company to, a Governmental Authority; (xiii) all Contracts providing for “earn-outs,” “performance guarantees” or other similar contingent payments by a Company; (xiv) all Contracts relating to the Business or with a Company that grant material exclusivity rights or “most favored nations” status to the counterparty thereof; (xv) all support agreements, insurance, surety bonds or other similar Contracts relating to the Business or with a Company; (xvi) all powers of attorney relating to the Business or granted by a Company; (xvii) all Contracts for the acquisition of all or any portion of a Person or all or substantially all of its assets or the disposition of any material assets of a Company, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no obligations ongoing; (xviii) all Contracts with any foreign sales agent, foreign sales representative and any other third party involved in interacting with a Governmental Authority on behalf of an Asset Seller or Company; and (xix) all other Contracts to which have not been entirely fulfilled any Asset Seller or performed any of its Affiliates (including the Companies) is a party and that is material to, and otherwise necessary for, the continued operation of the Business (such Contracts, collectivelytogether with the Contracts related to employee benefits, Lease Agreements, Company Leases, Real Estate Contracts and Contracts related to Intellectual Property or IT Assets, the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms Seller has delivered or made available to Purchaser a correct and provisions complete copy of each Material Contract, together with all amendments and supplements thereto. The CompanyNotwithstanding any provision of this Section 3.17, Seller, the Asset Sellers and Companies will not be required to provide copies of Material Contracts and other documents and data to any person to whom such access would be in violation of any Export Control Laws.
(i) Each Material Contract is in full force and effect and is valid, binding and enforceable against the Asset Seller or the Affiliate (including the Companies) of the applicable Asset Seller that is party thereto and, to the Knowledge of the CompanySeller, against the other party parties thereto in accordance with its terms, subject to the General Enforceability Exceptions, (ii) none of the Asset Sellers, any of its Affiliates (including any Company), or, to Seller’s Knowledge, any other Person is in material breach or violation of, or default under, any Material Contract, (iii) none of the Asset Sellers or any of its Affiliates (including any Company) has received any written notice of a default under or breach of any Material Contract; (iv) each of the Asset Sellers and its Affiliates (including Company) have performed all material obligations required to be performed by it under each Material Contract. None of the Asset Sellers or any of its Affiliates (including any Company) (A) has received any written notice of termination, cancellation or non-renewal with respect to any Material Contract is not in breach Contract, or default under (B) has waived or released any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person material rights under any Material Contract. A trueTo the Knowledge of Seller, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) none of the Company Disclosure Schedule.
counterparties to the Material Contracts (c1) Each plans to terminate, cancel or not renew such Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms Contract, and (ii2) in full force and effect. Each Material Contract (no event or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one handdevelopment has occurred, and the other parties theretono fact, on the other handcircumstance or condition exists, that (with respect to the subject matter thereof. No event or circumstance has occurred that, with without notice or lapse of time or both) could reasonably be expected to give any Person the right to receive or require a material rebate, would constitute an event of default chargeback, penalty or change in delivery schedule under any Material Contract or result in a termination thereof cancel, terminate or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to modify any Material Contract. None of the Asset Sellers or any of its Affiliates (including any Company) has made any misrepresentations or inaccurate certifications in connection with any bid or proposal to any Governmental Authority.
(d) The Company has Contracts referenced as numbers 4, 5, 6, 7 and 8 on Schedule 1.01-5(b) (the “Intercompany Contracts”) contain terms, conditions, pricing and agreements no Liability for less favorable to Seller than those terms, conditions, pricing and agreements contained in or otherwise governing the deferred purchase price previous supply arrangements between the Business and the Seller’s other Affiliates that the Intercompany Contracts replaced as of propertythe date hereof, goods or servicesprovided that Seller may, whether connected or with the consent of Purchaser, not to be unreasonably withheld, amend the acquisition of any business (earn-out or other similar type of paymentsIntercompany Contracts between the date hereof and Closing to the extent necessary for this Section 3.17(d) or noncompetition agreementto be true.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.16(a) of the Company Disclosure Schedule Letter sets forth a true, an accurate and complete and correct list as of each the date hereof of the following Contracts (each such Contract required to be set forth on such Schedule, a “Material Contract”) to which the Company is a party or is otherwise bound, or by which the Company is bound and which have not been entirely fulfilled any of its properties or performed (such Contracts, collectively, the “Material Contracts”):assets are bound:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity Interests of the Company;
(ii) any Contract all Contracts that provide for aggregate consideration payable to or by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value any fiscal year in excess of fifty thousand dollars ($100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum50,000);
(iii) all Contracts relating to capital equipment or expenditures or other purchases of material, supplies or other assets or properties or services in excess of fifty thousand dollars ($50,000) individually;
(iv) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course ordinary course of Businessbusiness or advances to employees for expenses in the ordinary course of business not in excess of fifty thousand dollars ($50,000) individually) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)to, or investment in, any Person or any agreement Contract relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or serviceinvestment;
(v) all Contracts that restrict, limit or purports to prohibit, restrict or limit the ability of the Company to (A) compete in, or conduct business in, any Contract that relates line of business or to an acquisition provide services to any Person or divestiture in any geographic area or during any period of material assets that contains covenants, indemnities time (B) use or other contractual obligations that could impose a Liability that is material enforce any Intellectual Property Rights or Technology owned by or exclusively licensed to the Company;
(vi) any Contract under which all Contracts that are related to Indebtedness of the Company has any outstanding Indebtedness or granting or evidencing an Encumbrance a Lien on any property (including intellectual or industrial property and Technology) or asset of the Company, other than a Permitted EncumbranceCompany (including Company Owned IPR);
(vii) all Contracts under which that obligate the Company to pay employees any Person amount outside the ordinary course of business (other than base salary, standard bonus and employee benefits provided in the Companyordinary course of business or as otherwise set forth in Section 3.11(a) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000Disclosure Letter);
(viii) all contracts with any bonds management service, consulting, financial advisory or Contracts of Guarantee in which the Company acts as a surety similar firm or guarantor with respect to any obligation (fixed investment or contingent) of another Personcommercial banks;
(ix) all Contracts with any Governmental Entity;
(x) all Contracts (including letters of intent) (A) involving the future disposition or acquisition of assets or properties involving consideration of more than fifty thousand dollars ($50,000), individually or in the aggregate, or any merger, consolidation or similar business combination transaction or (B) relating to the acquisition by the Company of any operating business or the Equity Interests of any other Person pursuant to which the Company has continuing obligations as of the date hereof;
(xi) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, co-packaging, joint development or similar arrangement;
(xxii) leases, subleases, licenses or similar contract requiring payments to or from the Company in excess of fifty thousand dollars ($50,000) per annum representing an interest in or in respect of any tangible rights, assets or property;
(xiii) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation litigation, arbitration, Claim, Proceeding or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licenseedispute;
(xiv) any Contract concerning the acquisitionall Contracts that contain “most favored nation”, disposition“exclusivity”, occupancy“requirements”, management “take or operation of any Real Property ownedpay”, leased first refusal, or used by the Companyfirst offer provisions or similar terms;
(xv) all collective bargaining agreements entered into Contracts (A) for the employment or engagement of any individual that cannot be terminated by the Company;Company for any reason without the payment or provision of severance, or (B) providing for change in control, transaction, retention, or other similar payments to any current or former employee or other individual service provider; and
(xvi) all Contracts (including any Contract providing Outbound License Agreements and Inbound License Agreements) relating in whole or in part to, or that the Company indemnify includes (A) any Person in an amount that would be material sale, assignment, hypothecation, other transfer, license, option, other grant of rights under or with respect to, or covenant not to the Companybring claims for infringement or other misappropriation of, any Technology or Intellectual Property Rights, other than licenses to the Company of Off-the-Shelf Software and any such agreement entered into non-exclusive licenses granted to Company’s customers in the Ordinary Course of Business;
ordinary course in connection with such customers utilizing the services and technology provided by the Company or (xviiB) any Contracts use limitation with respect to any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business Technology or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Intellectual Property Rights.
(b) The Company Each Material Contract is in material compliance with full force and effect and is the terms legal, valid and provisions binding obligation of each Material Contract. The the Company, and to the Knowledge of the Company, each of the other parties thereto, enforceable in accordance with the terms thereof, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or the implied covenant of good faith and fair dealing. Except as set forth in Section 3.16(b) of the Company Disclosure Letter, there exists no default or event of default, nor any event, occurrence, condition or act (including the consummation of the transactions contemplated by this Agreement) which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default thereunder, in each case by the Company, with respect to any Material Contract other than any such default, event of default, event, occurrence, condition or act which is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company. To the Knowledge of the Company, all of the covenants to be performed by any other party to any Material Contract is not have been fully performed in breach or default under any of its termsall material respects. The Company has not received notice of any breachdelivered or made available to Parent true and complete copies, default or notice of termination by any Person under any Material Contract. A trueincluding all amendments, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a3.16(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunderLetter. The Company has no reason to believe any party is not liable to any Material Contract will of its customers for any Liabilities relating to or arising out of any equipment that is not fulfill its obligations thereunder in all material respects, and manufactured by the Company has not received any notice in excess of termination or intent to terminate the amount covered by any party to any Material Contractthe underlying manufacturer.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of each of 4.15 lists the following Contracts to which the Company is a party or subject or by which the Company it is bound and which have not been entirely fulfilled or performed (such Contracts, collectivelywith the Contracts required to be listed on Schedule 4.15, the “"Material Contracts”"):
(i) all Contracts that contain restrictions with respect to payment of dividends employment, agency or any other distribution in respect of the Membership Units or other Equity of the Companyconsulting Contracts;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annumall stock purchase, stock option and stock incentive plans (other than Plans);
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors A) with any Insider or (B) between or among any Insiders relating in the Ordinary Course of Business) or advance to (other than travel and entertainment advances any way to the employees Company;
(iv) all distributor, reseller, OEM, dealer, manufacturer's representative, sales agency or advertising agency, finder's and manufacturing or assembly Contracts;
(v) all franchise agreements;
(vi) any Contracts or group of related Contracts with the Company extended in same party for the Ordinary Course purchase of Business), products or investment in, any Person or any agreement relating to the making of any such loan, advance or investment services with a undelivered balance in excess of $25,000;
(ivvii) any Contract that (i) requires or group of related Contracts with the Company to purchase any product same party for the sale of products or service services with an undelivered balance in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service25,000;
(vviii) all leases of personal property with aggregate annual payments in excess of $25,000;
(ix) any Contract that relates for the sale of any capital assets;
(x) any Contract for capital expenditures in excess of $25,000;
(xi) all Contracts relating to the borrowing of money or to mortgaging, pledging or otherwise placing an acquisition or divestiture Encumbrance on any of material the assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to of the Company;
(vixii) any Contract under which the Company has any outstanding Indebtedness each written warranty, guaranty or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor similar undertaking with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which contractual performance extended by the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xiii) all Contracts relating to any surety bond or letter of credit required to be maintained by the Company;
(xiv) any Contract that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xv) any Contract concerning a partnership or joint venture;
(xvi) any Contract providing for the development of any products, Software or Intellectual Property Rights or the delivery of any services by, for or with any third party;
(xvii) any Contracts with any Governmental Authority to which containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit the Company is a partyfrom freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(xviii) any all Contracts that limit, in any material respect, the ability of the Company pertaining to compete in any line of business confidentiality or with any Person or in any geographic area or during any period of timenon-disclosure;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; andeach Capital Lease;
(xx) all Contracts terminable by any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate other party upon a change of control of the Company, for an amount in excess of $100,000, individually (in Company or upon the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term failure of the lease, not including any option term); andCompany to satisfy financial or performance criteria specified in such Contract;
(xxi) any other Contract power of attorney that is currently in effect;
(xxii) all leases of real property; and
(xxiii) any and all other Contracts of the Company not entered into in the Ordinary Course of Business or that are material to the operation business, financial condition, results of operations or prospects of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)Company.
(b) Each Material Contract is valid and binding, currently in force and enforceable in accordance with its terms, subject to the Remedies Exception. The Company is has performed all obligations required to be performed by it in material compliance connection with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of any claim of default by it under or termination of any Material Contract. The Company has no present expectation or intent intention of not fully performing any obligation pursuant to terminate any Material Contract, and there is no breach, anticipated breach or default by the Company or any other party to any Material Contract.
(d) . There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material terms of any Material Contract and no Person has made written demand for such renegotiation. The Company can perform each Material Contract on time, at a profit and without unusual expenditures of time and money. The Company has no Liability obligation to refund payments received for work not yet performed under a Material Contract where the deferred purchase price percentage of property, goods or services, whether connected or not work completed is less than the percentage of revenues received to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreementdate.
Appears in 1 contract
Sources: Merger Agreement (Asv Inc /Mn/)
Material Contracts. (a) Section 4.10(a) Schedule 3.10 of the Company Seller Disclosure Schedule Letter sets forth as of the date hereof a true, complete and correct list of each of the following Contracts that relate primarily to the Business to which the a Seller Entity, Conveyed Company or any Affiliate of any thereof is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):), true and complete (in all material respects) copies of which Seller has made available to Purchaser prior to the execution hereof:
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;
(ii) any Contract that by its terms requires the payment by or on behalf of the Company each Equipment Lease which entails rental payments in excess of $100,000 per annum or $500,000 in the delivery by aggregate;
(ii) each Contract for goods and/or services between (a) any Seller Entity or Conveyed Company on the one hand, and any other Seller Entity, Conveyed Company or any Affiliate of goods any thereof, on the other hand or services with a fair market value in excess (b) Seller and/or any of $100,000 per annum its Affiliates (other than the Conveyed Companies) or provides for any of the Company to receive payments in excess officers or directors of $100,000 per annumSeller and/or any of its Affiliates (other than the Conveyed Companies), on the one hand, and any Seller Entity and/or Conveyed Company, on the other hand;
(iii) all Contracts involving a each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee (other than accounts receivable owing from trade debtors excluding items set forth in the Ordinary Course of BusinessSchedule 3.13(a) or advance to (other than travel and entertainment advances to the employees of the Company extended Seller Disclosure Letter) in the Ordinary Course respect of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment Indebtedness in excess of $25,000100,000;
(iv) any each customer Contract that (i) requires the Company to purchase any product or service resulted in payment in excess of $100,000 from a third party 500,000 in the 2009 Fiscal Year or (ii) requires that is expected to result in payment in excess of $1,000,000 in the Company deal exclusively with a third party in connection with aggregate within Seller’s fiscal years 2010 and 2011, to the sale applicable Seller Entity or purchase of any product or serviceConveyed Company, respectively;
(v) any each outstanding Contract with vendors of the Business that relates resulted in payment in excess of $500,000 in the 2009 Fiscal Year or is expected to an acquisition result in payment in excess of $1,000,000 in the aggregate within Seller’s fiscal years 2010 and 2011 by the applicable Seller Entity or divestiture of material assets that contains covenantsConveyed Company, indemnities or other contractual obligations that could impose a Liability that is material to the Companyrespectively;
(vi) any each Contract under which materially limiting the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset ability of the Companyapplicable (A) Asset Selling Entity (or following the Closing, other than a Permitted Encumbrancethe Business) to compete with any Person in connection with such entity’s conduct of the Business or (B) Conveyed Company to compete with any Person in connection with such entity’s conduct of the Business;
(vii) all Contracts under which any Person (other than each material Contract regarding the Company) has directly formation or indirectly guaranteed Indebtedness of the Company participation in excess of $50,000an equity joint venture with a third party;
(viii) each Contract pursuant to which any bonds Seller Entity or Contracts Conveyed Company (as licensor or licensee) licenses any Intellectual Property material to the Business (excluding licenses for commercial off-the-shelf computer software that are generally available and which have an acquisition cost of Guarantee in which the Company acts as a surety $100,000 or guarantor with respect to any obligation (fixed or contingent) of another Personless);
(ix) all Contracts involving collective bargaining or other labor or union Contracts, or any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementcontract with any Business Employees;
(x) all Contracts involving any resolution or settlement material sales representative contracts and material powers of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Dateattorney;
(xi) any Contract limiting or restraining each outstanding purchase order from a customer on the Company or any successor thereto from engaging or competing in any mannerback-log report as of September 25, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is 2009 with a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an back-log amount in excess of $100,000, individually 500,000 (in the case of each a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term“Material Purchase Order”); and
(xxixii) any other Contract that or purchase order that, to the Knowledge of Seller, is material to the operation of the business Business and does not fall into any of the Company and not otherwise disclosed pursuant to this categories above in Section 4.10(a)3.10.
(b) The Company is Other than those identified in material compliance with the terms and provisions of Section 3.10(a)(xi) or any purchase order identified in Section 3.10(a)(xii), each Material Contract. The Company, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete full force and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Scheduleeffect.
(c) Each Material There exists no default or event of default by the applicable Asset Selling Entity or Conveyed Company or, to the Knowledge of Seller, any other party to any such Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other handpurchase order, with respect to the subject matter thereof. No event any material term or circumstance has occurred that, with notice or lapse provision of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract, any Material Purchase Order or any purchase order identified in Section 3.10(a)(xii).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Preformed Line Products Co)
Material Contracts. (aSchedule 3.11(a) Section 4.10(a) is an accurate and complete list, as of the Company Disclosure Schedule sets forth a truedate hereof, complete and correct list of each all of the following Contracts to which a member of the Company Group is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):), provided, that, unless otherwise expressly required to be set forth on Schedule 3.11(a) as set forth in clauses (i) through (xvi) below, the term “Material Contracts” shall not include any purchase or sales orders (A) entered into in the Ordinary Course which remain open or outstanding as of the date hereof with existing payment obligations owed by or to the Company Group thereunder of less than $50,000 or (B) under which no obligations or payments of any party thereto remain outstanding as of the date hereof:
(i) all Contracts that contain restrictions with respect evidencing Indebtedness for borrowed money owed by the Company Group or providing for any loan to payment of dividends or any Person (other distribution in respect than a member of the Membership Units Company Group or other Equity advances to Company Group Employees in the Ordinary Course) or guaranty by any member of the CompanyCompany Group of any obligation for borrowed money of a third Person that is not a member of the Company Group, in each case, with a principal amount in excess of $1,000,000, and Contracts (other than the Credit Agreement) that expressly limit the ability of any member of the Company Group to incur Indebtedness (including guaranties) or incur Liens;
(ii) any Contract all Company Group Employment Contracts that by its terms requires the payment by or on behalf of the Company provide for annual base compensation in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum100,000;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company Group IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant Group, other than non-exclusive licenses for commercially available off-the-shelf software licensed to this Section 4.10(a).the Company Group for a one-time or annual fee of less than $50,000;
(biv) The Real Property Leases or leases of personal property under which the Company Group is the lessee and is obligated to make payments in material compliance with the terms and provisions excess of each Material Contract. The Company$50,000 per annum;
(v) Contracts providing for any business acquisition or disposition or any other investment in, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and (other than a description of each verbal Material Contract is set forth in Section 4.10(a) member of the Company Disclosure Schedule.
(cGroup, and other than investments in marketable securities or advances to Company Group Employees in the Ordinary Course excluding any Affiliate Arrangements) Each Material Contract is (i) valid and binding on by the Company party thereto in accordance with its respective terms and Group entered into at any time during the three (ii3) in full force and effect. Each Material Contract (year period prior to the date of this Agreement or description) sets forth the entire agreement and understanding (or complete description pursuant to which any of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, Company Group has ongoing obligations (including continuing economic obligations with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes payment of any right or obligation or the loss amounts in respect of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respectsearn-outs, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contract.
(d) The Company has no Liability for the deferred purchase price or purchase price adjustments) or liabilities;;
(vi) any labor or collective bargaining agreements;
(vii) any joint venture or limited partnership agreements or similar agreements;
(viii) Contracts requiring capital expenditures in an amount in excess of property$10,000 in any 12-month period;
(ix) Contracts with (A) a Material Customer or (B) a Material Vendor;
(x) Contracts that (A) require any member of the Company Group to do business with the counterparty thereto on an exclusive basis or restricts or limits, goods in any material respect, a member of the Company Group from owning, managing, soliciting or servicesoperating any business or in any geographical location, whether connected (B) contain minimum payment obligations in excess of $50,000 per year or not take-or-pay obligations or material performance guarantees requiring the Company Group to produce, deliver or have available a minimum amount of goods, in each case, by any member of the Company Group (C) grant any right of first refusal or right of first offer or similar right to third parties (other than Real Property Leases);
(xi) Contracts, including any sale or purchase orders in any amounts under which any payment or other obligations on the part of either party remain outstanding as of the date hereof, relating to steel purchases;
(xii) any sale or purchase orders which remain open or outstanding as of the date hereof with payment obligations by or to the acquisition Company Group thereunder in excess of $50,000 in the aggregate;
(xiii) Contracts that expressly limit or purport to limit the payment of dividends or distributions in respect of the capital stock of any business member of the Company Group, the pledging of the capital stock of any member of the Company Group or the incurrence of indebtedness for borrowed money or guarantees by any member of the Company Group or the ability of any member of the Company Group in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or business;
(earn-out xiv) Contracts that are with a Governmental Authority;
(xv) any Contracts that reflect a settlement of any threatened or other similar type pending Litigation either (A) in excess of payments$50,000 and entered into since January 1, 2018 or (B) containing continuing obligations or noncompetition agreementrestrictions on the Company Group; and
(xvi) any Affiliate Arrangement.
Appears in 1 contract
Material Contracts. (ai) Section 4.10(aAs of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(A) any lease of real or personal property providing for annual rentals of $300,000 or more;
(B) any Contract (other than purchase orders for goods purchased by the Company) that is reasonably likely to require either (x) annual payments to or from the Company and its Subsidiaries of more than $100,000 or (y) aggregate payments to or from the Company and its Subsidiaries of more than $100,000;
(C) other than with respect to any partnership that is wholly-owned by the Company or any wholly-owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns a voting or economic interest;
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $100,000;
(E) any Contract required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(F) any non-competition Contract or other Contract that (I) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material assets or line of business of the Company Disclosure Schedule sets forth a trueor its Subsidiaries or, complete after the Effective Time, Parent or its Subsidiaries, (III) grants “most favored nation”status that, following the Merger, would apply to Parent and correct list of each its Subsidiaries, including the Company and its Subsidiaries or (IV) prohibits or limits the right of the following Contracts Company or any of its Subsidiaries to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any Company Intellectual Property rights;
(G) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the other party or any of its Affiliates;
(H) any Contract between the Company or any of its Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares;
(I) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for (x) guarantees of franchisee obligations, and (y) any such Contract that is (I) not material to the Company or any of its Subsidiaries and (II) entered into in the ordinary course of business;
(J) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $100,000;
(K) any Contract to which the Company or any of its Subsidiaries is bound a party concerning Intellectual Property, including, without limitation, Contracts granting the Company, any of its Subsidiaries, or any other Person rights to use any Company Intellectual Property; and
(L) any other Contract or group of related Contracts that, if terminated or subject to a default by any party thereto, would, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect (the Contracts described in clauses (A) – (L), together with all exhibits and which have not been entirely fulfilled or performed (schedules to such Contracts, collectively, being the “Material Contracts”):
(i) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company;).
(ii) any A copy of each Material Contract that by its terms requires the payment by or on behalf has previously been delivered to Parent and each such Contract is a valid and binding agreement of the Company in excess or one of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business)its Subsidiaries, or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company has any outstanding Indebtedness or evidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a).
(b) The Company is in material compliance with the terms and provisions of each Material Contract. The Companymay be, and to the Knowledge of the Company, the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (, and neither the Company nor any of its Subsidiaries nor, to the knowledge of any executive officer or description) sets forth the entire agreement and understanding (or complete description general counsel of the material terms, as applicable), between the Company, on one hand, and any other party thereto is in default or breach in any respect under the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes terms of any right such agreement, contract, plan, lease, arrangement or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material Contractcommitment.
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a3.11(a) of the Company Partnership Disclosure Schedule sets forth a true, correct and complete and correct list of each of the following Contracts to which either the Company Partnership or any of its Subsidiaries is a party party, to which either the Partnership, any of its Subsidiaries or any of their respective properties is subject, or by which the Company Partnership or any of its Subsidiaries is otherwise bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”) (other than the Partnership Benefit Plans set forth on Section 3.14(a) of the Partnership Disclosure Schedule):
(i) all Contracts that contain restrictions (including purchase orders submitted in the ordinary course) with respect to payment of dividends suppliers under which the Partnership or any other distribution of its Subsidiaries makes payments in respect excess of the Membership Units or other Equity of the Company$250,000 on an annual basis;
(ii) all Contracts (including purchase orders) that individually involve payments to the Partnership or any Contract that by of its terms requires the payment by or on behalf of the Company Subsidiaries in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum250,000 on an annual basis;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in any agreement for the Ordinary Course employment of Business) any employee or advance to (other than travel and entertainment advances with respect to the employees equity compensation of any employee employed by the Company extended in the Ordinary Course of Business), or investment in, any Person Partnership or any agreement relating to the making of any such loan, advance or investment in excess of $25,000its Subsidiaries that is not terminable at-will;
(iv) any collective bargaining agreement or any other Contract that (i) requires the Company to purchase with any product labor union, or service in excess of $100,000 from a third party severance agreements, programs, policies or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or servicearrangements;
(v) any Contract that relates all leases relating to an acquisition or divestiture of material assets that contains covenants, indemnities the Leased Real Property or other contractual obligations that could impose a Liability that is material leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) and any sublease or assignments with respect to any of the Companyforegoing, involving an annual commitment or payment of more than $250,000 individually by the Partnership and all leases relating to Owned Real Property;
(vi) any Contract under which all Contracts that provide for an increased payment or benefit, or accelerated vesting, upon the Company has any outstanding Indebtedness execution of this Agreement or evidencing an Encumbrance on any property the Closing or asset of in connection with the Company, transactions contemplated by this Agreement and the other than a Permitted EncumbranceTransaction Agreements;
(vii) all Contracts under pursuant to which any Person (Indebtedness is outstanding or may be incurred, including any loan or credit agreement, note, bond, mortgage, indenture, letter of credit, interest rate or currency hedging arrangement or other than the Company) has directly similar agreement or indirectly guaranteed Indebtedness of the Company in excess of $50,000instrument;
(viii) all Contracts prohibiting the Partnership or any bonds of its Subsidiaries from freely engaging in any business or Contracts of Guarantee competing anywhere in which the Company acts as a surety world, including, without limitation, any material nondisclosure or guarantor with respect to any obligation (fixed or contingent) of another Personconfidentiality agreements;
(ix) all partnership agreements and all other Contracts involving providing for the sharing of any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangementprofits of the Partnership;
(x) all Contracts involving any resolution power of attorney or settlement other similar agreement or grant of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;agency; and
(xi) any Contract limiting all Contracts that individually involve annual payments to or restraining from the Company Partnership or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount its Subsidiaries in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant to this Section 4.10(a)250,000.
(b) The Company is All Material Contracts are legal, binding and in material compliance with the terms and provisions of each Material Contract. The Companyfull force and, and to the Knowledge of the CompanyPartnership, assuming the due authorization, execution and delivery by any other party thereto, are currently enforceable against the Partnership and its Subsidiaries, as applicable, and, to the Knowledge of the Partnership, as of the Closing will be, if not previously terminated or expired in accordance with their respective terms, enforceable in all material respects against the other party to any Material Contract is not in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party parties thereto in accordance with its respective the express terms thereof, subject to bankruptcy, insolvency, reorganization, moratorium and (ii) in full force similar Laws of general applicability relating to or affecting creditors’ rights and effectto general principles of equity, except for such failures that would not, or would not reasonably be expected to, have a Material Adverse Effect on the Partnership. Each To the Knowledge of the Partnership, there does not exist under any Material Contract (any event of default or description) sets forth the entire agreement and understanding (or complete description of the material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred condition that, with after notice or lapse of time or both, would constitute an a violation, breach or event of default under thereunder on the part of the Partnership or any of its Subsidiaries, except for such violations, breaches, defaults, events or conditions that would not have a Material Adverse Effect on the Partnership. No party has given written notice that it intends to terminate, cancel or fail to renew or extend any Material Contract or result in a termination thereof to otherwise cease or would cause or permit materially reduce its business with the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any Material ContractPartnership.
(dc) The Company has no Liability Except for the deferred purchase price of property, goods or services, whether connected such Material Contracts that have been redacted or not provided due to the acquisition competitive reasons, GrafTech has been supplied with a true and correct copy of any business (earn-out each written Material Contract or other similar type of payments) or noncompetition agreementa written summary thereof.
Appears in 1 contract
Material Contracts. (a) Section 4.10(a) Section 3.21 of the Company Disclosure Schedule sets forth forth, as of the date of this Agreement, a true, true and complete and correct list of each Contract of the Company or any of its Subsidiaries in effect as of the date of this Agreement and that is included within any of the following Contracts to which the Company categories:
(a) is a party or by which the Company “material contract” (as such term is bound and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(idefined in Item 601(b)(10) all Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect Regulation S-K of the Membership Units or other Equity of the CompanySEC);
(iib) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), or investment in, any Person or any agreement relating to the making of any such loan, advance or investment in excess of $25,000;
(iv) any Contract that (i) requires contains any non-compete or exclusivity provisions including with respect to marketing, manufacturing, supply or distribution rights (or obligates the Company or any Affiliates to purchase enter into any product noncompete or service in excess exclusivity arrangements) with respect to any line of $100,000 from a third party business, geographic area or other conduct with respect to the Company or any of its Affiliates or (ii) requires that or obligates the Company deal exclusively with a third party in connection with or any Affiliates to perform or conduct research, clinical trials or development for the sale or purchase benefit of any product person other than the Company or serviceany Affiliates;
(vc) (i) containing any Contract that relates standstill or similar agreement pursuant to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a Liability that is material to the Company;
(vi) any Contract under which the Company or its Subsidiaries has any outstanding Indebtedness agreed not to acquire assets or evidencing an Encumbrance on any property securities of another Person or asset (ii) containing a put, call or right of the Company, other than a Permitted Encumbrance;
(vii) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in first refusal pursuant to which the Company acts or its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as a surety applicable, any equity interests or guarantor with respect to assets of any obligation (fixed or contingent) of another Person;
(ixd) all Contracts involving that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer;
(e) that is between the Company or its Subsidiaries, on the one hand, and either (i) a director, officer, employee or leased employee of the Company or any joint ventureof its Subsidiaries (that is not a Company Plan) or (ii) any Person beneficially owning 5% or more of the outstanding Shares, on the other;
(f) that involves annual expenditures in excess of €500,000 in the aggregate;
(g) that relates to a partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development venture or similar arrangement;
(xh) all Contracts involving any resolution that relates to the borrowing of money or settlement extension of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Datecredit, in each case in excess of €1,000,000;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect, the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xix) all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any Contract to purchase, lease or otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the case of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and
(xxi) any other Contract that is material to the operation of the business of the Company and not otherwise disclosed pursuant its Subsidiaries, taken as a whole, and relates to this Section 4.10(aresearch, clinical trial, development, distribution, sale, supply, license, marketing, co-promotion or manufacturing by third parties of the Key Products (other than PRO052, PRO055 and PROSPECT).;
(bj) The that includes a license, sublicense (of any tier), covenant not to ▇▇▇, covenant not to assert, or immunity from suit under any Intellectual Property rights material to the business of the Company and its Subsidiaries, taken as a whole, other than such Contracts licensing to the Company or any of its Subsidiaries commercially available off the shelf software on a non-exclusive basis;
(k) that involves the payment by the Company or its Subsidiaries of royalties, milestones or similar payments which could total in excess of €1,000,000;
(l) that requires future material payments by the Company or any of its Subsidiaries as a result of any “change of control” or similar provisions contained therein, other than any Company Plan;
(m) that contains a “right of first refusal”, “right of first offer”, “right of first negotiation” or similar provision relating to any material asset of the Company; or
(n) lease agreements or other material agreements that relate to the Leased Real Property (each, a “Material Contract”). Except as would not reasonably be expected to be materially adverse to the Company and its Subsidiaries, taken as a whole, (i) each of the Material Contracts and Company Plans, if a contract or agreement, is in material compliance with a legal, valid and binding agreement of the terms and provisions Company or its Subsidiary, as the case may be, and, to the knowledge of the Company, of each Material Contract. The Companyother party thereto, enforceable against the Company or such Subsidiary, as the case may be, and to the Knowledge knowledge of the Company, the each other party thereto, subject to any the Enforceability Exceptions and (ii) each of the Company and its Subsidiaries has performed or is performing in all respects all obligations required to be performed by it under the Material Contract Contracts and the Company Plans and is not in breach or default thereunder, and has not waived or failed to enforce any rights or benefits thereunder, and no event has occurred which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract or Company Plan or would give to others any right of its termstermination, amendment or cancellation. The Prior to the date hereof, the Company has not received notice of any breach, default delivered or notice of termination by any Person under any Material Contract. A true, complete made available to Parent a true and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule.
(c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement including all amendments, modifications, extensions and understanding (or complete description of the renewals thereof and waivers that are material terms, as applicable), between the Company, on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any Material Contract will not fulfill its obligations thereunder in all material respects, and the Company has not received any notice of termination or intent to terminate by any party to any such Material Contract).
(d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.
Appears in 1 contract