Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”): (i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts); (ii) any material sales agency, sales representation, distributorship or franchise agreement; (iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company; (iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate; (v) any Contract restricting the payment of dividends or the repurchase of stock or other equity; (vi) any collective bargaining agreements; (vii) any material joint venture, profit sharing, partnership agreements or other similar agreements; (viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise); (ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months; (x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time; (xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business; (xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business; (xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and (xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC. (b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Hudson Holding Corp), Merger Agreement (Hudson Holding Corp), Merger Agreement (Rodman & Renshaw Capital Group, Inc.)
Material Contracts. (a) Section 5.14 of Except for the Company Disclosure Contracts disclosed in Schedule lists each of 3.12 attached hereto, with respect to the following ContractsSystem, whether written or oral, to which the Company System Operations or any of its Subsidiaries Purchased Assets, Seller is not a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease (whether of real or series personal property) providing for annual rentals of related Contracts $25,000 or more;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either (A) annual payments by Seller of $25,000 or to the Company more or any (B) aggregate payments by Seller of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship 50,000 or franchise agreementmore;
(iii) any Contract sales, distribution or series other similar agreement providing for the sale by Seller of related Contracts involving materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments by to Seller of $25,000 or more or (B) aggregate payments to the Company or any Seller of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating to arrangement (other than the lending agreement of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatelimited partnership of Seller);
(v) any Contract restricting agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $25,000 and which may be prepaid on not more than 30 days notice without the payment of dividends or any penalty and (B) entered into subsequent to the repurchase date of stock or other equitythis Agreement as permitted by Section 306 hereof;
(vi) any collective bargaining agreementsoption, license, franchise or similar agreement;
(vii) any material joint ventureagency, profit sharingdealer, partnership agreements sales representative, marketing or other similar agreementsagreement;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Seller to engage or compete in any line of business or with any Person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset or which would so limit the freedom of Parent, the Company or any of their respective Affiliates Buyer after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xiix) agreements by any agreement with or for the Company benefit of any Affiliate of Seller; or
(x) any other agreement, commitment, arrangement or any of its Subsidiaries plan not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), made in each case entered into outside the ordinary course of business;
(xii) any business which is material Contract providing for to the indemnification by System or the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (Purchased Assets taken as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECa whole.
(b) The Company has prior Each Contract disclosed in any schedule to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in disclosed pursuant to this Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are 3.12 is a valid and binding obligations agreement of the Company Seller and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries neither Seller nor, to the Knowledge knowledge of the CompanySeller, any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances Contract, nor, to the knowledge of Seller, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. No waiver, indulgence or breach that would not be reasonably likely postponement of any material obligations under any lease has been granted by Seller or, to result the knowledge of Seller, by any other Person. Seller has been and presently is in a Material Adverse Effect on peaceable possession under all such leases since acquiring its interest in the Companyleasehold. True and complete copies of each such written Contract have been delivered to Buyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (American Cellular Corp /De/)
Material Contracts. (a) Except as disclosed in Section 5.14 4.9(a), Section 4.9(f) and Section 4.18 of the Company Disclosure Schedule lists each of Letter, (a) neither the following ContractsCompany, whether written or oral, to which the Company or nor any of its Subsidiaries is a party to, and (b) none of the Company, any of its Subsidiaries, or by which it any of their respective properties or assets is bound as of the date of this Agreement (each such Contract listed or required to be so listedby, a “Company Material Contract”):Contracts that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, related to the formation, creation, operation, management or control of any Contract partnership or series joint venture that is material to the business of related Contracts the Company and the Subsidiaries, taken as a whole, or in which the Company owns more than a 20% voting or economic interest, or with respect to which the Company has obligations of more than $250,000 in the aggregate;
(iii) relate to indebtedness for borrowed money, the deferred purchase price of property or service, any credit agreement, note, bond, mortgage, debenture or other similar instrument, any letter of credit or similar facilities, any obligation to purchase, receiptredeem, lease retire, defease or use otherwise acquire for value any capital stock or any warrants, rights or options to acquire such capital stock, or any guarantee with respect to an obligation of materialsany other Person, suppliesin each case, goodshaving an outstanding principal amount in excess of $250,000;
(iv) relate to an acquisition, servicesdivestiture, equipment merger or similar transaction that contains representations, covenants, indemnities or other assets involving future obligations (including indemnification, “earn-out” or other contingent obligations), that are still in effect and, individually or in the aggregate, could reasonably be expected to result in payments by in excess of $250,000;
(v) other than an acquisition subject to clause (iv) above, obligate the Company to make any capital commitment or expenditure (including pursuant to any joint venture) in excess of $250,000; or
(vi) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries Subsidiaries, prohibits the pledging of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of capital stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any Subsidiary of the Company; Each Contract of the type described in clauses (i) through (vi) above is referred to engage or compete in any line of business or with any Person herein as a “Material Contract.”
(b) Except as would not, individually or in any area or which would so limit the freedom of Parentaggregate, the have a Company or any of their respective Affiliates after the Effective Time or Material Adverse Effect, (Bi) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are each Material Contract is valid and binding on the Company or and any of its Subsidiaries or that would be binding on Parent or its Affiliates after to the Effective Time;
(xi) agreements by extent such Subsidiary is a party thereto, as applicable, and is in full force and effect and enforceable against the Company or its Subsidiary in accordance with its terms, (ii) to the Knowledge of the Company, each Material Contract is valid and binding on the other parties thereto, is in full force and effect and enforceable against such other party in accordance with its terms, (iii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it to date under each Material Contract, (iv) neither the Company nor any of its Subsidiaries not to acquire assets has received written notice of, the existence of any event or securities condition which constitutes, or, after notice or lapse of time or both, will constitute, a third party (including standstill agreements) material default or agreements by a third party not to acquire assets or securities breach on the part of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officerMaterial Contract, director or beneficial owner; and
(xivv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, has received written notice from any other party thereto is to a Material Contract with respect to the termination, non-renewal or renegotiation in default or breach under any material respects of the terms of, and otherwise has no Knowledge that such other party intends to terminate, not renew, or renegotiate in any material respects the terms of, any Material Contract.
(c) The Company has made available to Parent, as of any Company the date of this Agreement, true, correct and complete copies of (including all amendments or modifications to), all Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContracts.
Appears in 3 contracts
Sources: Merger Agreement (Bankrate, Inc.), Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
Material Contracts. (a) Section 5.14 Except for Contracts relating to the Retained Assets, which will not be assumed by Acquirer, Schedule 3.15(a) of the Company Contributor Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound Contracts as of the date of this Agreement Execution Date (each such Contract listed or required to be so listedContracts, a collectively, the “Company Material ContractPropane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contracts”):
(i) any Contract between any Propane Group Entity or series Inergy Sales, on the one hand, and NRGY or any Affiliate of related Contracts for NRGY (other than the purchasePropane Group Entities or Inergy Sales), receipt, lease on the other hand;
(ii) any Contract that contains any provision or use covenant which restricts any Propane Group Entity or Inergy Sales from engaging in any lawful business activity or competing in any line of materials, supplies, goods, services, equipment business or other assets involving future payments by with any Person or in any geographic area or during any period of time after the Execution Date;
(iii) any Contract that relates to the Company creation, incurrence, assumption or guarantee of any Indebtedness by any Propane Group Entity or Inergy Sales with an aggregate principal amount exceeding $100,000;
(iv) any Contract in respect of the formation of any partnership or joint venture or that otherwise relates to the joint ownership or operation of the assets owned by any of its Subsidiaries the Propane Group Entities or Inergy Sales;
(v) any Contract of more than $200,000 in the aggregate Propane Group Entities or Inergy Sales that includes the acquisition or sale of assets (other than Contracts involving payments to the Company for Inventory entered into in the ordinary course of business, including investment banking contracts);
) (iiA) with a value in excess of $5,000,000 or (B) pursuant to which any material sales agency, sales representation, distributorship Propane Group Entity or franchise agreement;
(iii) any Contract Inergy Sales has continuing “earn-out” or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business obligations (in each either case, whether by merger, sale of stock, sale of assets or otherwise);
(ixvi) any Contract or commitment that involves a sharing of profits by any Propane Group Entity or Inergy Sales with any other Person;
(vii) any Contract that otherwise involves the annual payment or sale by or to any of the Propane Group Entities or Inergy Sales of more than $500,000 or 250,000 gallons of propane, respectively, and that cannot be terminated by the Propane Group Entities or Inergy Sales on ninety (90) days’ or less notice without the payment by the Propane Group Entities or Inergy Sales of any material penalty or other further payment;
(viii) all leases Contracts with independent contractors or subleases for real consultants (or personal property similar arrangements) to which any Propane Group Entity or Inergy Sales is a party involving annual expense payments in excess of $1,000 100,000 and that cannot cancelable be cancelled by the Company such Propane Group Entity or Inergy Sales without penalty or further payment and without more than thirty (without premium 30) days’ notice;
(ix) all Contracts with any Governmental Authority pursuant to which a Propane Group Entity or penalty) within six monthsInergy Sales has an obligation to sell propane in quantities that are in excess of 250,000 gallons;
(x) any Contract involving annual payments in excess of $100,000 that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”nations provisions or grants any exclusive rights, rights of first refusal, rights of first negotiation negotiation, participation or similar obligations rights to any Person with respect to any assets or restrictions that are binding on the Company business opportunity of any Propane Group Entity or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeInergy Sales;
(xi) agreements any lease of personal property under which any Propane Group Entity or Inergy Sales is lessee (A) providing for the payment by such Propane Group Entity or Inergy Sales of annual rent of $50,000 or more that cannot be terminated by such Propane Group Entity or Inergy Sales on less than ninety (90) days’ notice without the payment by the Company Propane Group Entities or Inergy Sales of any of its Subsidiaries not to acquire assets material penalty or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessother further payment;
(xii) any material Contract providing agreement for the indemnification purchase by any Propane Group Entity or Inergy Sales of propane, heating oil, distillates, materials, supplies, goods, services, equipment or other assets with a value in excess of $100,000 that cannot be terminated by such Propane Group Entity or Inergy Sales on less than ninety (90) days’ notice without the Company payment by such Propane Group Entity or any of its Subsidiaries Inergy Sales of any Person material penalty or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessfurther payment;
(xiii) any material Contracts Contract relating to the transportation or storage of propane or the products therefrom, or the provision of services related thereto (including any operation, operation servicing or maintenance Contract) in each case pursuant to which any Propane Group Entity or Inergy Sales receives annual revenues or makes annual payments in excess of $100,000;
(xiv) any collective bargaining agreement to which any Propane Group Entity or Inergy Sales is a party;
(xv) except for employment agreements relating to Excluded Employees, any employment agreement with a divisional president, senior vice president or Director–Fleet/Asset Management of any Propane Group Entity;
(xvi) any Contract under which any Propane Group Entity or Inergy Sales is obligated to purchase or sell a specified volume of propane in excess of 250,000 gallons over the remaining term of such Contract, including any requirements contracts, “take-or-pay” or “ship-or-pay” Contracts;
(xvii) any Hedging Agreement;
(xviii) all licenses of Intellectual Property (A) officer from a Propane Group Entity or director of the Company or Inergy Sales to any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company third party and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record to a Propane Group Entity or beneficial owner of five percent Inergy Sales (or more a Contributor Party if utilized in or for the benefit of the voting securities Propane Business) from any third party, in each case, (1) pursuant to which any Propane Group Entity or Inergy Sales receives annual revenues or makes annual payments in excess of Company$100,000 and (2) excluding licenses associated with off-the-shelf software;
(xix) any Contract between any of the Propane Group Entities or Inergy Sales and any officer, director or Affiliate of any of the Propane Group Entities or Inergy Sales (other than the NRGY Entities) or any immediate family member of any of the foregoing; and
(xx) any Contract not specified above pursuant to which any Propane Group Entity or Inergy Sales has an obligation (Cpayment or otherwise) affiliate exceeding $500,000.
(b) Except as such term is defined in Rule 12b-2 promulgated under set forth on Schedule 3.15(b) of the Contributor Disclosure Schedule, each Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract has been made available to Acquirer, subject to the Clean Team Agreement, and (i) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 is a valid and Rule 16a-1 binding obligation of the Propane Group Entity or Inergy Sales that is party thereto and (ii) is in full force and effect and enforceable in accordance with its terms against such Propane Group Entity or Inergy Sales, as applicable, and, to the Knowledge of the Contributor Parties, the other parties thereto, except in each case, as enforcement may be limited by Creditors’ Rights.
(c) None of Inergy Sales or the Propane Group Entities nor, to the Knowledge of the Contributor Parties, any other party to any Propane ▇▇▇▇▇ ▇▇▇) of any such officer, director ▇▇▇▇▇ Contract is in default or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listedbreach, in Section 5.14 of the Company Disclosure Schedule (including all amendmentsany material respect, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, thereunder and no written event has occurred that (i) with the giving of notice to terminate and no written notice or the passage of an intent to terminatetime or both would constitute a breach or default, in whole any material respect, by Inergy Sales or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norsuch Propane Group Entity or, to the Knowledge of the CompanyContributor Parties, any other party thereto is in default to any Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract, or breach (ii) would permit termination, modification or acceleration under any Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract by the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companycounterparty thereto.
Appears in 3 contracts
Sources: Contribution Agreement (Suburban Propane Partners Lp), Contribution Agreement (Inergy L P), Contribution Agreement (Suburban Propane Partners Lp)
Material Contracts. (a) Section 5.14 5.11(a) of the Company Disclosure Schedule lists sets forth an accurate and complete list of each of the following Contracts, whether written or oral, Contracts to which the any Brand Company or any of its Subsidiaries is a party or by which it any such Brand Company and its properties and assets are bound (together with all Contracts under which any Brand Company has (x) acquired or obtained, or has or has been licensed or otherwise granted, any license, permission or other right to utilize any Intellectual Property that is owned by a Person other than Seller or the Brand Companies or (y) licensed or otherwise granted any Person any license, permission or other right to utilize any Material Registered Company Intellectual Property, including the License Agreements, collectively, the “Material Contracts”):
(i) Contracts with a customer of any Brand Company that generated net revenue for the Company in excess of $1,000,000 during the 12-month period ended December 31, 2015;
(ii) Contracts pursuant to which any Brand Company paid to any supplier, vendor or similar Person in excess of $1,000,000 during the 12-month period ended December 31, 2015;
(iii) Contracts relating to the rental or use of tangible personal property, equipment, vehicles, other personal property or fixtures, except for any Contract individually involving payment of annual rental sums less than $150,000 annually;
(iv) Contracts pursuant to which any Brand Company is bound by any (A) covenant not to compete with any Person or in any geographical area, (B) covenant not to engage in a specific line of business, (C) covenant not to use, exploit or enforce any Company Intellectual Property in any capacity;
(v) Contracts pursuant to which any Brand Company has incurred any Indebtedness in excess of $50,000 or granted a Lien (other than Permitted Liens) on any property or asset of any Brand Company;
(vi) Contracts relating to any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, co-packaging, joint development or similar arrangement pursuant to which any Brand Company either receives or makes payments in excess of $50,000 annually;
(vii) Contracts for the employment, hire or retention of any officer, employee, consultant, or independent contractor of any Brand Company (on a full-time or part-time basis) (A) for which such Brand Company is obligated as of the date of this Agreement to make payments in excess of $100,000 annually or (each such Contract listed B) providing for the payment of cash or required to be so listed, a “Company Material Contract”):other compensation or benefits upon the consummation of the Contemplated Transactions;
(iviii) Contracts involving any resolution or settlement of any actual or threatened Proceeding which involve (A) payments in excess of $150,000 which have not yet been paid or (B) any Contract or series of related restrictive covenants that are currently binding upon any Brand Company;
(ix) other than pursuant to the Gaiam-FFL APA, Contracts for the purchase, receipt, lease or use sale of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries the properties or assets of more than $200,000 in the aggregate (Brand Companies, other than Contracts involving payments to the Company entered into in the ordinary course of businessbusiness consistent with past practice, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense consideration in excess of $1,000 150,000 which were entered into within the last twenty-four (24) months and not cancelable by the pursuant to which a Brand Company (without premium or penalty) within six months;has any ongoing obligations thereunder; and
(x) Contracts, not otherwise identified above, pursuant to which any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of Brand Companies has a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities non-contingent obligation as of the Company or any date of its Subsidiaries (including standstill agreements), this Agreement to make payments in each case entered into outside excess of $150,000 individually during the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve12-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner period following the date of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECthis Agreement.
(b) The Company Seller has prior to the date of this Agreement delivered or Made Available made available to Parent Purchaser complete and accurate copies of each Company Material written Contract listed, or required to be listed, in (other than purchase orders) set forth on Section 5.14 5.11(a) of the Company Disclosure Schedule (including all written amendments, modifications, extensions modifications and renewals thereto and waivers thereundersupplements thereto). All of the Company Material Contracts are valid valid, binding and binding obligations of enforceable against the applicable Brand Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of against the other parties theretothereto (except in each case as the enforceability thereof may be limited by any applicable bankruptcy, reorganization, insolvency or other Applicable Laws affecting creditors’ rights generally or by general principles of equity), and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure effect. Each Brand Company has performed all obligations required to be valid and binding and in full force and effect has not had and would not reasonably be expected performed by it to have, individually or in date under the aggregate, Material Contracts to which it is a Material Adverse Effect on the Companyparty, and no written notice it is not in breach or default in any material respect thereunder. No other party to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by is in breach or default thereunder and there exists no change, event, effect, condition or circumstance which, with the Company giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of its Subsidiariesdefault thereunder with respect to any Material Contract. Neither the Company nor any of its Subsidiaries nor, to the Knowledge Each Material Contract set forth in Section 5.11(a) of the Company, any other party thereto is Disclosure Schedule (or required to be set forth in default Section 5.11(a) of the Disclosure Schedule) has not been terminated or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companybeen repudiated.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)
Material Contracts. (a) Section 5.14 As of the Company Disclosure Schedule lists each of the following Contractsdate hereof, whether written or oral, to which neither the Company or nor any of its Subsidiaries Subsidiary is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease (whether of real or series personal property) providing for annual rentals of related Contracts $500,000 or more;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either (A) annual payments by or to the Company or any of its and the Subsidiaries of $500,000 or more than $200,000 in the or (B) aggregate (other than Contracts involving payments to by the Company entered into in and the ordinary course Subsidiaries of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship $1,000,000 or franchise agreementmore;
(iii) any Contract sales, distribution or series of related Contracts involving payments other similar agreement providing for the sale by or to the Company or any Subsidiary of its materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company and the Subsidiaries of $2,000,000 or more than $50,000 in the or (B) aggregate that requires consent of or notice to a third party in the event of or with respect payments to the Merger in order to avoid a breach Company and the Subsidiaries of $5,000,000 or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatearrangement;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise) owned by the Company or any of its Subsidiaries;
(vi) any agreement relating to the acquisition of any business (whether by merger, sale of stock, sale of assets or otherwise) (A) entered into since January 1, 2010 or (B) that contains any outstanding non-competition, earn-out or other contingent payment obligations or any other outstanding obligation of the Company or any of its Subsidiaries;
(vii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $500,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty;
(viii) any agreement pursuant to which the Company or any of its Subsidiaries is granted rights (including any covenant not to assert) with respect to any material Intellectual Property (other than licenses of unmodified commercially available off-the-shelf software);
(ix) all leases any agreement pursuant to which the Company or subleases for real any of its Subsidiaries grants rights (including any covenant not to assert) with respect to any material Intellectual Property owned by or personal property involving annual expense licensed to the Company or any of its Subsidiaries (including any agreement that would encumber or purport to encumber any Intellectual Property owned by or exclusively licensed to any Affiliate of the Company (other than any of its Subsidiaries) which is not a direct party to such agreement), other than non-exclusive grants of such rights in excess the ordinary course of $1,000 and not cancelable business by the Company (without premium or penalty) within six monthsany of its Subsidiaries in connection with and limited to use of any of the Company’s or its Subsidiaries’ supplied products or services;
(x) any Contract option, franchise or similar agreement;
(xi) any agency, dealer, sales representative, marketing or other similar agreement;
(xii) any agreement that (A) limits in any material respect the freedom of the Company or any Subsidiary (or that purports, after the Closing to limit the freedom of its Subsidiaries Parent, the Company or any of their respective affiliates) to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or area;
(xiii) any agreement with (A) any of their respective Affiliates after the Effective Time or Company’s Affiliates, (B) contains any material exclusivityPerson directly or indirectly owning, “most favored nation”controlling or holding with power to vote, rights 5% or more of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or outstanding voting securities of the Company or any of its Subsidiaries Affiliates, (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiiC) any material Contract providing for the indemnification Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the Company or any of its Subsidiaries of any Person Affiliates or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiiiD) any material Contracts with any (A) director or officer or director of the Company or any of its Subsidiaries (Affiliates or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their the “immediate family”) ” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerofficer; andor
(xiv) any other Contract required agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of and the SECSubsidiaries, taken as a whole.
(b) The Company has prior Each agreement, contract, plan, lease, arrangement or commitment disclosed in any Schedule to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listeddisclosed pursuant to this Section or any other Section of this Article 4 (each, in Section 5.14 a “Material Contract”) is a valid and binding agreement of the Company Disclosure Schedule or any Subsidiary, as the case may be (including all amendmentssubject, modificationsin the case of enforceability, extensions to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and renewals thereto other laws affecting creditors’ rights generally and waivers thereunderto general principles of equity). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelledeffect, rescinded or terminated after the date and none of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norSubsidiary or, to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances agreement, contract, plan, lease, arrangement or commitment, and, to the knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. True and complete copies of each such agreement, contract, plan, lease, arrangement or breach that would not be reasonably likely commitment have been delivered to result in a Material Adverse Effect on the CompanyParent.
Appears in 3 contracts
Sources: Merger Agreement (Rennes Fondation), Merger Agreement (Ebix Inc), Merger Agreement (Ebix Inc)
Material Contracts. (a) Except for this Agreement, the Rowan Benefit Plans, agreements with customers for the provision of drilling and related services, agreements filed as exhibits to the Rowan SEC Documents or as set forth on the applicable subsection of Section 5.14 3.19(a) of the Company Rowan Disclosure Schedule lists each Schedule, as of the following Contractsdate hereof, whether written or oral, to which the Company or neither Rowan nor any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any Contract that (A) imposes any restriction on the right or series ability of related Contracts Rowan or any of its Subsidiaries to compete with any other person or in any geographic area or acquire or dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of Rowan and its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of Rowan or any of its Subsidiaries in an amount in excess of $50.0 million, except any transaction among Rowan and its wholly owned Subsidiaries or among Rowan’s wholly owned Subsidiaries;
(iv) any executory Contract that provides for the purchaseacquisition or disposition of assets, receiptrights or properties with a value in excess of $50.0 million, lease except any transaction among Rowan and its wholly owned Subsidiaries or use of materialsamong Rowan’s wholly owned Subsidiaries;
(v) any material joint venture, supplies, goods, services, equipment partnership or limited liability company agreement or other assets involving future similar Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between Rowan and its Subsidiaries or among Rowan’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of Rowan or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any Contract that obligates Rowan or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person other than any loan or capital contribution to, or investment in, (A) Rowan or one of its Subsidiaries or (B) any person (other than an officer, director or employee of Rowan or any of its Subsidiaries) that is less than $50.0 million to such person;
(viii) any Contract that by its terms calls for aggregate payments by or to the Company Rowan or any of its Subsidiaries of more than $200,000 50.0 million in the aggregate over the remaining term of such Contract, except for (other than A) Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
with a customer and (iiB) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any such Contract or series of related Contracts involving payments that may be cancelled by or to the Company Rowan or any of its Subsidiaries with a penalty or other liability of more less than $50,000 in the aggregate that requires consent 10.0 million to Rowan or any of its Subsidiaries, upon notice of 60 days or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)less;
(ix) all leases any Contract that involves, or subleases for real or personal property involving is reasonably expected in the future to involve, annual expense in excess revenues of $1,000 and not cancelable by the Company (without premium or penalty) within six months50.0 million;
(x) any Contract that (A) limits providing for drilling unit construction, repair, modification, life extension, overhaul or conversion for an amount in any material respect the freedom excess of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time$50.0 million;
(xi) agreements by the Company or any Contract with a customer with a remaining duration of its Subsidiaries not to acquire assets or securities of a third party (greater than 180 days, including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessfixed price customer options;
(xii) any material Contract providing for the indemnification by the Company that includes any affiliate of Rowan as a counterparty or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company third party beneficiary and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract that would be required to be filed by the Company pursuant to disclosed under Item 601(a)(10) 404 of Regulation S-K of the SEC.;
(bxiii) The Company has prior to the date of this Agreement delivered any Contract that contains “earn out” or Made Available to Parent complete and accurate copies of each Company Material Contract listedother contingent payment obligations, or required to be listedremaining indemnity or similar obligations, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not that could reasonably be expected to have, individually or result in payments after the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received date hereof by the Company Rowan or any of its Subsidiaries. Neither Subsidiaries in excess of $50.0 million;
(xiv) any lease or sublease with respect to a Rowan Leased Real Property with remaining payments in excess of $10.0 million; and
(xv) any Contract the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default loss or breach under the terms of any Company Material Contract except for such instances of default or breach that which would not reasonably be reasonably likely expected to result in have a Rowan Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Sources: Transaction Agreement, Transaction Agreement (Ensco PLC), Transaction Agreement (Rowan Companies PLC)
Material Contracts. (a) Section 5.14 Except for contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents, Schedule 3.18(a) of the Company Disclosure Schedule lists each of the following ContractsSchedules, whether written or oral, to which the Company or any of its Subsidiaries is sets forth a party or by which it is bound complete and accurate list as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):of:
(i) any Contract contract that is required to be filed as an exhibit to a report or series of related Contracts for filing under the purchase, receipt, lease Securities Act or use of materials, supplies, goods, services, equipment the Exchange Act;
(ii) any contract that involves annual payments or other assets involving future payments by or to consideration from the Company or any of its Subsidiaries subsidiaries of more than $200,000 in the aggregate 1,000,000 during any twelve (other than Contracts involving payments to 12) month period and is not terminable by the Company entered into in the ordinary course of business, including investment banking contracts);
or its subsidiary on 90 (iior fewer) any material sales agency, sales representation, distributorship or franchise agreementdays’ notice without penalty;
(iii) any Contract or series of related Contracts involving payments by or to the Company or contract that contains any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract covenant restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom ability of the Company or any of its Subsidiaries to engage subsidiaries or affiliates (including Parent after the Merger Closing) to: (x) conduct or compete in any material line of business or business, (y) compete with any Person person or (z) operate in any area or which would so limit the freedom of Parent, geographic area;
(iv) any contract granting to any person (other than the Company or any of their respective Affiliates after the Effective Time or (Bits subsidiaries) contains any material exclusivity, “most favored nation”, ” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar obligations or restrictions that are binding on requirement in favor of any person (other than the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timesubsidiaries);
(xivi) any contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the Company or any of its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000 is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries not subsidiaries of debt obligations of any other person, including the respective aggregate principal amounts outstanding as of the date of this Agreement;
(viii) any contract with or with respect to acquire assets a labor union, guild or securities of a third party other employee representative (including standstill agreementsany collective bargaining agreement or works council agreement);
(ix) any contract that requires a consent to or agreements otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by a third party not to acquire assets the Company or securities any of its subsidiaries in excess of $1,000,000 in the aggregate;
(xi) any contract providing for indemnification by the Company or any its subsidiaries of any officer, director or employee of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;subsidiaries; and
(xii) any material Contract providing for contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the indemnification assets or otherwise) from any person or divestiture or disposition by the Company or any of its Subsidiaries subsidiaries to any person of any Person material properties, assets, capital stock or under other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as to which the Company or any of its Subsidiaries subsidiaries is a party or by which any of them is bound. Each such contract described in any of clauses (i) through (xii) of this Section 3.18(a) (and each contract entered into after the date of this Agreement that would have been described in any of clauses (i) through (xii) of this Section 3.18(a) if such contract existed on the date of this Agreement) is referred to herein as a “Company Material Contract”.
(b) Prior to the date of this Agreement, the Company has guaranteed provided complete and accurate copies of all Company Material Contracts (including all amendments, modifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) in effect as of the date of this Agreement.
(c) Neither the Company nor any liabilities subsidiary of the Company is in material breach of or obligations material default under the terms or conditions of any other PersonCompany Material Contract and no event or condition has occurred that constitutes, in each case entered into outside or, after notice or lapse of time or both, would constitute, a material default on the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director part of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norsubsidiaries or, to the Knowledge knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its subsidiaries received any notice of any such material default, event or condition. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or material default or breach under the terms or conditions of any Company Material Contract. Each Company Material Contract except for such instances is a valid and binding obligation of default or breach that would not be reasonably likely the Company and, to result in a Material Adverse Effect on the knowledge of the Company, is in full force and effect, enforceable in accordance with its terms in all material respects, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Norcraft Companies, Inc.), Merger Agreement (Fortune Brands Home & Security, Inc.)
Material Contracts. (a) Section 5.14 of Except for the Company Disclosure Transaction Agreements, the Development and License Agreement, the Patent Cooperation Agreement, the Stock Purchase Agreement, the Manufacturing and Supply Agreement and the Co-Existence Agreement, and the Contracts disclosed in Schedule lists each of 3.08, with respect to the following ContractsDevelopment Program, whether written or oral, to which the Company or any of its Subsidiaries Aradigm is not a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease (whether of real or series of related Contracts personal property);
(ii) any agreement for the purchase, receipt, lease sale or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either (A) annual payments by Aradigm of $10,000 or to the Company more or any (B) aggregate payments by Aradigm of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship 50,000 or franchise agreementmore;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofpartnership, a loss of benefit under, or triggering a price adjustment, right of renegotiation joint venture or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companysimilar agreement or arrangement;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixv) all leases any agreement relating to indebtedness for borrowed money or subleases for real the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or personal property involving annual expense in excess of $1,000 and not cancelable secured by the Company (without premium or penalty) within six monthsany asset);
(xvi) any Contract option, license, franchise or similar agreement;
(vii) any agency, dealer, sales representative, marketing or other similar agreement;
(viii) any agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Aradigm to engage or compete in any line of business or business, with any Person or in any area within the Field (as defined in the Development and License Agreement) or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Transferred Asset or which would so limit the freedom of ParentNovo Nordisk Delivery Technologies, the Company or any of their respective Affiliates Inc. after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xiix) agreements by any agreement with or for the Company benefit of any Affiliate of Aradigm; or
(x) any other agreement, commitment, arrangement or any of its Subsidiaries plan not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), made in each case entered into outside the ordinary course of business;
(xii) any business that is material Contract providing for to the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECDevelopment Program.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Each Contract listed, disclosed in any Schedule or required to be listed, in disclosed pursuant to this Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is a valid and binding obligations agreement of the Company Aradigm and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries neither Aradigm nor, to the Knowledge knowledge of the CompanyAradigm, any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances Contract, and, to the knowledge of Aradigm, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default or breach thereunder. True and complete copies of each such Contract that would not be reasonably likely is listed in Part II of Annex 1 to result in a Material Adverse Effect on Exhibit A to the CompanyAsset Purchase Agreement have been delivered to Novo Nordisk.
Appears in 3 contracts
Sources: Restructuring Agreement (Novo Nordisk a S), Restructuring Agreement (Aradigm Corp), Restructuring Agreement (Aradigm Corp)
Material Contracts. (a) Except as disclosed on Schedule 3.11, and except, in the case of Section 5.14 3.11(a)(i), (ii) and (vii), for any agreements that are terminable on not more than 60 days notice and without the payment of the Company Disclosure Schedule lists each of the following Contractsany penalty by, whether written or oralany other material consequence to, to which the Company or any Subsidiary, neither the Company nor any Subsidiary, to the best of its Subsidiaries their knowledge, is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease not made in the ordinary course of business which involves payments of more than $150,000 per year or series of related Contracts extends beyond December 31, 1999;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 not made in the aggregate ordinary course of business which individually does not exceed $250,000;
(other than Contracts involving payments iii) any agreement relating to indebtedness for borrowed money or the Company deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement entered into in the ordinary course of business, including investment banking contracts)business with an aggregate outstanding principal amount not exceeding $25,000;
(iiiv) any material sales agencypartnership, sales representation, distributorship joint venture or franchise agreementother similar agreement or arrangement;
(iiiv) any Contract material agency, dealer, sales representative, marketing or series other similar agreement not made in the ordinary course of related Contracts involving payments by business;
(vi) any material agreement or arrangement with Seller or any of its Affiliates; or
(vii) any other agreement not made in the ordinary course of business that is material to the Company and the Subsidiaries taken as a whole.
(b) Except for agreements which are disclosed as terminable on Schedule 3.11, each agreement disclosed in any Schedule to this Agreement to which the Company or any Subsidiary is a party is a valid and binding agreement of its Subsidiaries of more than $50,000 the Company or a Subsidiary, as the case may be, and is in full force and effect, and neither the aggregate that requires consent of or notice to a third party in the event of or with respect Company nor any Subsidiary is, nor to the Merger knowledge of Seller is any other party thereto, in order to avoid a default or breach or termination of, a loss in any material respect under the terms of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that except for such defaults or breaches which would not reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Chubb Securities Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyEffect.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Jefferson Pilot Corp), Stock Purchase Agreement (Chubb Corp), Stock Purchase Agreement (Jefferson Pilot Corp)
Material Contracts. (a) Section 5.14 As of the Company Disclosure Schedule lists date hereof, neither AMB nor any of its Subsidiaries is a party to or bound by any Contract (i) required to be filed as an exhibit to AMB’s Annual Report on Form 10-K pursuant to Item 601(b)(2) or (10) of Regulation S-K under the Exchange Act, (ii) any partnership, joint venture, co-investment or similar agreement with any third parties requiring aggregate payments after the date hereof by AMB or any of its Subsidiaries pursuant to any such partnership, joint venture, co-investment or similar agreement in excess of $150,000,000, (iii) any Contract limiting in any material respect the ability of AMB or any of its Subsidiaries to engage in any line of business in any geographic area, (iv) any Contract or executed binding letter of intent involving the future disposition or acquisition of assets or properties with a fair market value in excess of $250,000,000, or any merger, consolidation or similar business combination transaction, (v) any Contract relating to development, construction, capital expenditures or purchase of materials, supplies, equipment or other assets or properties (other than purchase orders for such items in the ordinary course of business) in each case requiring aggregate payments by AMB or any of the following Contractsits Subsidiaries in excess of $100,000,000 during their remaining term, whether written or oral(vi) any Contract evidencing a capitalized lease obligation or other indebtedness to any Person, or any guaranty thereof, in excess of $100,000,000, other than any Contract in respect of a ground lease or office leases or obligations thereunder (all such Contracts to which the Company AMB or any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such Contract listed or required are referred to be so listed, a herein as the “Company AMB Material ContractContracts”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under. Except as would not have, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a an AMB Material Adverse Effect on Effect, each of the CompanyAMB Material Contracts is a valid and binding obligation of AMB, or the Subsidiary of AMB that is a party thereto, and, to AMB’s knowledge, the other parties thereto, enforceable against AMB and no written notice its Subsidiaries and, to terminate AMB’s knowledge, the other parties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and no written notice other similar laws of an intent general applicability relating to terminate, in whole or part, any Material Contract has been received by the Company affecting creditors’ rights generally and general equitable principles. None of AMB or any of its Subsidiaries. Neither Subsidiaries is, and to AMB’s knowledge no other party is, in breach, default or violation (and no event has occurred or not occurred through AMB’s or any Subsidiary of AMB’s action or inaction or, to AMB’s knowledge, through the Company nor action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of any AMB Material Contract to which AMB or any Subsidiary of AMB is now a party, or by which any of its Subsidiaries northem or their respective properties or assets may be bound, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default breaches, defaults or breach that violations as would not have, or would not reasonably be reasonably likely expected to result have, individually or in a the aggregate, an AMB Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Material Contracts. (ai) Section 5.14 Except for the contracts included as exhibits to the Mediconsult Public Reports or in connection with this transaction, and other than contracts involving the payment or receipt of the Company Disclosure Schedule lists each of the following Contractsless than $10,000, whether written or oral, to which the Company or neither Mediconsult nor any of its Subsidiaries is a party to or bound by which it is bound as any of the date of this Agreement following (each such Contract listed or required collectively and including the contracts which are included as exhibits to be so listedthe Mediconsult Public Reports, a “Company the "Mediconsult Material Contract”Contracts"):
(i1) any Contract contract or series of related Contracts agreement for the purchase, receipt, lease acquisition or use sale of securities or any material portion of the assets or business of or to any other person or entity whether completed or pending other than pursuant to Mediconsult Options and Mediconsult Warrants;
(2) any contract or agreement for the purchase of materials, supplies, goodsequipment, servicesservices or data involving in the case of any such contract or agreement more than $10,000 over the life of the contract or agreement;
(3) any contract, equipment agreement or instrument that expires or may be renewed at the option of any person other assets involving future payments than Mediconsult or its Subsidiaries so as to expire more than six months after the date of this Agreement, or which is not terminable by Mediconsult or to a Subsidiary (as applicable) on sixty or fewer days' notice at any time without penalty, and involves the Company receipt or payment by Mediconsult or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)10,000 during any twelve month period;
(ii4) any material sales agencyindenture, sales representationmortgage, distributorship note, loan agreement installment obligation or franchise agreementother contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement, any letter of credit or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(iii5) any Contract contract or series agreement for capital expenditures in excess of related Contracts involving payments by $10,000, individually or to in the Company aggregate, with other similar contracts or agreements;
(6) any contract or agreement which restricts the geographic and operational freedom of Mediconsult or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect or, to the Merger in order to avoid a breach or termination of, a loss Knowledge of benefit under, or triggering a price adjustment, right of renegotiation or other remedy underMediconsult, any such agreement, of its officers or key employees to engage in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course line of business (as that term is defined in each case, whether by merger, sale of stock, sale of assets the Exchange Act) or otherwise);
(ix) all leases or subleases to compete with any Person except for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits competition in any material respect the freedom lines of the Company business in which neither Party is currently engaged or will foreseeably engage or any confidentiality, secrecy or non-disclosure contract or agreement other than an ancillary provision included as part of a contract or agreement entered into by Mediconsult or any of its Subsidiaries in the Ordinary Course of Business or other contracts or agreements which are substantially in the form as usually used by Mediconsult;
(7) any contract or agreement involving payments during any twelve-month period of $10,000 or more, pursuant to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company Mediconsult or any of its Subsidiaries is a lessor or that would be binding on Parent lessee of any real property, machinery, equipment, motor vehicles, office furniture, fixtures or its Affiliates after the Effective Timeother personal property;
(xi) agreements by the Company 8) any contract or agreement with any person with whom Mediconsult or any of its Subsidiaries does not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities deal at arm's length within the meaning of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessCode;
(xii9) any agreement 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;
(10) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessconsulting agreement;
(xiii11) any material Contracts distribution, reseller, dealer, agency, franchise, advertising, revenue sharing, marketing or similar agreement;
(12) any clearing agency, investment banking, placement, broker or similar agreement other than any agreement with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in connection with this Agreement and the transactions contemplated hereby;
(13) any agreement with any Governmental Entity or “associates” any self-regulatory organization;
(14) any agreement to provide brokerage services or members directly or indirectly participate in brokerage activities, commissions or fees in any manner (including any forms of customer brokerage agreements);
(15) any data redistribution or other agreement with any vendor of financial market data or relating in any manner to financial market data;
(16) any product and/or service warranties, price protection or return agreement or written policy or any similar written undertaking by or for which Mediconsult or any of its Subsidiaries remains responsible to perform (a form of any of their “immediate family”the foregoing will be sufficient);
(17) (any agreement which would be terminable other than by Mediconsult or its Subsidiaries or any agreement that provides for the payment of money, accelerates or increases benefits, vesting or compensation or entitles any person to take actions or receive benefits or otherwise triggers obligations as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 a result of the ▇▇▇▇ ▇▇▇) Merger or consummation of any such officer, director or beneficial ownerof the transactions contemplated by this Agreement not otherwise disclosed in the Disclosure Schedule; andor
(xiv18) any other Contract agreement which is material to the operations of Mediconsult's or its Subsidiaries' business or operations or which may have a material affect on Mediconsult's assets or, properties or the Merger.
(ii) Each of Mediconsult and its Subsidiaries has performed all of the obligations required to be filed performed by it and is entitled to all accrued benefits under, and is not in default, nor to Mediconsult's Knowledge, has a claim been made that it is in default in respect of, each Mediconsult Material Contract to which it is a party or by which it is bound, except where the Company pursuant to Item 601(a)(10) of Regulation S-K nonperformance would not have a Mediconsult Material Adverse Effect. Each of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Mediconsult Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelledand there exists no default or event of default or event, rescinded occurrence, condition or terminated after act, with respect to Mediconsult or its Subsidiaries or, to Mediconsult's Knowledge, with respect to any other contracting party, which, with the date giving of this Agreement in accordance with their terms)notice, the lapse of time or the happening of any other event or condition, would become a material default or event of default under any Mediconsult Material Contract, except where the failure to be valid and binding and in full force and effect has not had and give such notice would not reasonably be expected to have, individually or in the aggregate, have a Mediconsult Material Adverse Effect on the Company, and Effect. There are no written notice to terminate and no written notice unwritten obligations or agreements or course of an intent to terminate, dealings contrary in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, material respect to the Knowledge of the Company, any other party thereto is in default or breach under the specific terms and conditions of any Company Mediconsult Material Contract except for such instances Contract. True, correct and complete copies of default all Mediconsult Material Contracts have been delivered or breach that would not be reasonably likely made available to result in a Material Adverse Effect on Andrx or filed as an exhibit to the CompanyMediconsult Public Reports.
Appears in 2 contracts
Sources: Merger Agreement (Andrx Corp /De/), Merger Agreement (Mediconsult Com Inc)
Material Contracts. (a) Section 5.14 Except for those agreements and other documents filed as exhibits or incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 or filed or incorporated in any of its other Company SEC Reports filed since January 1, 2019 and prior to the date hereof, neither the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or nor any of its Subsidiaries is a party to, bound by or by which it is bound as subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (in the case of subsections (iv), (v), (vi), (ix) and (x), only those involving the payment of more than $100,000 over the life of the date of this Agreement agreement) (each such Contract listed each, whether or required to be so listednot filed with the SEC, a “Company Material Contract”):
(i) any Contract or series that is a “material contract” within the meaning of related Contracts for Item 601(b)(10) of the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)SEC’s Regulation S-K;
(ii) any material sales agency, sales representation, distributorship that contains a non-compete or franchise agreement;
(iii) any Contract client or series of related Contracts involving payments by or to the Company customer non-solicit requirement or any of its Subsidiaries of more than $50,000 in other provisions that materially restricts the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination conduct of, a loss or the manner or location of benefit under, or triggering a price adjustment, right of renegotiation or other remedy underconducting, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course line of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line Affiliates (or, upon consummation of business or with any Person or in any area or which would so limit the freedom Mergers, of Parent, the Company Parent or any of their respective Affiliates after the Effective Time or its Affiliates);
(Biii) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on obligates the Company or any of its Subsidiaries or that would be binding on Affiliates (or, upon consummation of the Mergers, Parent or any of its Affiliates after the Effective TimeAffiliates) to conduct business with any third party on an exclusive or preferential basis;
(xiiv) agreements that requires referrals of business or requires the Company or any of its Affiliates to make available investment opportunities to any Person on a priority or exclusive basis;
(v) that relates to the incurrence of indebtedness by the Company or any of its Subsidiaries not (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to acquire assets repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions;
(vi) that grants any right of first refusal, right of first offer or securities of a third party (including standstill agreements) similar right with respect to any assets, rights or agreements by a third party not to acquire assets or securities properties of the Company or any of its Subsidiaries Subsidiaries;
(including standstill agreements)vii) that limits the payment of dividends by the Company or any of its Subsidiaries;
(viii) that relates to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any partnership or joint venture with any third party, except in each case entered into outside that relates to merchant banking investments by the Company or its Subsidiaries in the ordinary course of business;
(ix) that relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect;
(x) that provides for payments to be made by the Company or any of its Subsidiaries upon a change in control thereof;
(xi) that was not negotiated and entered into on an arm’s‑length basis;
(xii) any material Contract providing that provides for the indemnification by the Company or any of its Subsidiaries of any Person, except for contracts entered into in the ordinary course of business providing for customary and immaterial indemnification and provisions of the Company Articles and the Company Bylaws providing for indemnification;
(xiii) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $150,000 per annum (other than any such contracts which are terminable by the Company or any of its Subsidiaries on 60 days or less notice without any required payment or other conditions, other than the condition of notice);
(xiv) that grants to a Person any right, license, covenant not to ▇▇▇ or other right in Company Owned Intellectual Property or grants to the Company or any of its Subsidiaries a license or other right to any Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software), in each case that involves the payment of more than $150,000 per annum or is material to the conduct of the businesses of the Company;
(xv) to which any Affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or beneficiary (except with respect to loans to, or deposit or asset management accounts of, directors, officers and employees entered into in the ordinary course of business and in accordance with all applicable regulatory requirements with respect to it);
(xvi) that would prevent, materially delay or materially impede the Company’s ability to consummate the Merger, the Bank Merger or the other transactions contemplated hereby;
(xvii) 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 under assets;
(xviii) that is a lease of real or personal property providing for annual rentals of $50,000 or more;
(xix) that contains a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has guaranteed agreed not to acquire assets or securities of another party or any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessits Affiliates;
(xiiixx) any material Contracts with any (A) officer or director of that is between the Company or any of its Subsidiaries (and any director or any other employee who is one of the twenty most highly compensated employees officer of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of any Person beneficially owning five percent or more of the voting securities outstanding Company Common Stock; or
(xxi) that is otherwise not entered into in the ordinary course of Company; business or (C) affiliate (as such term that is defined in Rule 12b-2 promulgated under material to the ▇▇▇▇ ▇▇▇) Company or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 Subsidiary of the ▇▇▇▇ ▇▇▇) Company or their financial condition or results of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) operations. The Company has Previously Disclosed or made available to Parent prior to the date of this Agreement delivered or Made Available to Parent hereof true, correct and complete and accurate copies of each Company Material Contract.
(i) Each Material Contract listed, or required to be listed, in Section 5.14 is a valid and legally binding agreement of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All or one of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and as applicable, and, to the Knowledge of the Company are binding obligations of Company, the other parties counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and are Equity Exception) and is in full force and effect effect, (except those which are cancelled, rescinded or terminated after ii) the Company and each of its Subsidiaries has duly performed all obligations required to be performed by it prior to the date of this Agreement in accordance with their terms)hereof under each Material Contract, except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither (iii) neither the Company nor any of its Subsidiaries norSubsidiaries, and, to the Knowledge of the Company, any other counterparty or counterparties, is in breach of any provision of any Material Contract, (iv) each Material Contract can be readily fulfilled or performed by the Company and its Subsidiaries without undue or unusual expenditure of money or effort or any preparation, action or arrangement outside of the ordinary and usual course of business and (v) no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of the Company or any of its Subsidiaries under any such Material Contract or provide any party thereto is with the right to terminate such Material Contract. Section 3.16(b) of the Company Disclosure Schedule sets forth a true and complete list of (A) all Material Contracts pursuant to which consents or waivers are or may be required and (B) all notices which are required to be given, in default or breach under each case, prior to the terms performance by the Company of any Company Material Contract except for such instances this Agreement and the consummation of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyMerger, the Bank Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Bank of Commerce Holdings), Merger Agreement (Bank of Commerce Holdings)
Material Contracts. (a) Section 5.14 Except as disclosed in Schedule 6.15, or otherwise reflected in the SPAH Financial Statements, none of the Company Disclosure Schedule lists each of the following ContractsSPAH, whether written or oral, to which the Company or nor any of its Subsidiaries respective Assets, businesses, or operations, is a party to, or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedaffected by, a “Company Material Contract”):
or receives benefits under, (i) any employment, severance, termination, consulting, or retirement Contract or series providing for aggregate payments to any Person in any calendar year in excess of related Contracts for the purchase$200,000, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or (ii) any Contract relating to the Company borrowing of money by SPAH or the guarantee by SPAH of any such obligation (other than trade payables and Contracts relating to borrowings or guarantees made in the ordinary course of SPAH’s business), (iii) any Contract which prohibits or restricts SPAH or any personnel of its Subsidiaries SPAH from engaging in any business activities in any geographic area, line of more than $200,000 business or otherwise in the aggregate competition with any other Person, (iv) any Contract involving Intellectual Property (other than Contracts involving payments entered into in the ordinary course with customers or “shrink-wrap” software licenses), (v) any Contract relating to the Company provision of data processing, network communication, or other technical services to or by SPAH, (vi) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business, including investment banking contracts);
(ii) business and involving payments under any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any individual Contract or series of related Contracts involving payments by or to the Company or any contracts not in excess of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of200,000), a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint ventureexchange-traded or over-the-counter swap, profit sharingforward, partnership agreements future, option, cap, floor, or collar financial Contract, or any other similar agreements;
interest rate or foreign currency protection Contract or any Contract that is a combination thereof not included on its balance sheet, (viii) any Contracts or series of related Contracts Contract relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by mergerpurchase, sale or lease of stock, sale of assets real property by or otherwise);
from SPAH and (ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract or amendment thereto that would be required to be filed as an exhibit to a SPAH Exchange Act Report filed by SPAH with the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has SEC prior to the date of this Agreement delivered or Made Available that has not been filed as an exhibit to Parent a SPAH Exchange Act Report (Contracts referred to in clauses (i) through (ix) of this Section 6.15(a), together the “SPAH Contracts”). A true, correct and complete and accurate copies copy of each Company Material SPAH Contract listedhas been filed as an exhibit to an Exchange Act Document, furnished or made available to FFC as of the date hereof.
(b) With respect to each SPAH Contract and except as disclosed in Schedule 6.15(b): (i) the Contract is in full force and effect; (ii) SPAH is not in Default thereunder; (iii) SPAH has not repudiated or waived any material provision of any such Contract; (iv) no other party to any such Contract is, to SPAH’s Knowledge, in Default in any respect or has repudiated or waived each material provision thereunder; and (v) no consent is required by a Contract for the execution, delivery, or required to be listedperformance of this Agreement, in Section 5.14 the consummation of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder)Merger or the other transactions contemplated hereby. All of the Company Material Contracts are valid and binding obligations indebtedness of the Company and its SubsidiariesSPAH for money borrowed is prepayable at any time by SPAH without penalty, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded premium or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companycharge.
Appears in 2 contracts
Sources: Merger Agreement (Frontier Financial Corp /Wa/), Merger Agreement (SP Acquisition Holdings, Inc.)
Material Contracts. (a) Section 5.14 3.10 of the Company Disclosure Innovate Schedule lists each of Exceptions identifies the following Innovate Material Contracts, whether written or oralwhich have not been included in the Innovate SEC Reports, to and which the Company or any of its Subsidiaries is a party or by which it is bound are in effect as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):Agreement:
(ia) the Innovate Leases and the Innovate Ancillary Lease Documents;
(b) any Contract or series of related Contracts for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future for annual payments by or to the Company Innovate or any of its Subsidiaries of more than $200,000 of, or pursuant to which in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company last year Innovate or any of its Subsidiaries of more than $50,000 paid, in the aggregate that requires consent aggregate, $250,000 or more;
(c) any Contract for the sale of materials, supplies, goods, services, equipment or notice other assets, excluding Innovate Products, for annual payments to a third party Innovate or any of its Subsidiaries of, or pursuant to which in the event last year Innovate or any of its Subsidiaries received, in the aggregate, $150,000 or more;
(d) any Contract that relates to any partnership, joint venture, strategic alliance or other similar Contract other than agreements entered into with respect third parties for the incorporation of Subsidiaries, copies of which have been provided to the Merger Company;
(e) any Contract relating to Indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), except for Contracts relating to Indebtedness in order to avoid a breach an amount not exceeding $100,000 in the aggregate;
(f) any Contract for the employment of any employee or termination of, a loss engagement of benefit underany independent contractor (i) that provides for base salary in excess of $100,000 on an annual basis, or triggering (ii) that provides for severance, retention bonus, change in control or similar types of Contracts, other than Contracts that provide for severance, retention bonus, change in control or similar type Contracts at or below the amount of $100,000 per employee;
(g) all collective bargaining agreements or agreements with any labor organization, union or association to which Innovate is a price adjustmentparty;
(h) any Contract which by its terms limits in any material respect (i) the localities in which all or any significant portion of the business and operations of Innovate or its Subsidiaries or, right following the consummation of renegotiation the Contemplated Transactions, the business and operations of Surviving Company, Innovate or other remedy underany Affiliate of Innovate, any such agreementis or would be conducted, or (ii) the scope of the business and operations of Innovate and its Subsidiaries, taken as a whole, in each case that would reasonably be expected material to have Innovate and its Subsidiaries taken as a Material Adverse Effect on the Companywhole;
(ivi) promissory notesany Contract with any officer, loans, agreements, indentures, evidences of indebtedness key employee or other instruments providing employee of Innovate who develops or has developed any intellectual property of or for Innovate, or relating to the lending Innovate Contingent Worker of moneyany of Innovate or its Subsidiaries containing noncompetition, whether as borrowernon-solicitation, lender nondisclosure, assignment of inventions or guarantor, in amounts greater than $25,000 in the aggregateconfidentiality provisions;
(vj) any Contract restricting in respect of any Innovate Intellectual Property (including the payment of dividends distribution, licensing, marketing, advertising or sales thereof) that provides for annual payments of, or pursuant to which in the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company last year Innovate or any of its Subsidiaries to engage paid or compete received, in the aggregate, $250,000 or more;
(k) any line of business or Contract with any Person healthcare professional or any employee of any healthcare professional, including, but not limited to, any Contract for advisory boards, pharmacy practice management, consulting services, electronic medical records or practice management that provides for annual payments of, or pursuant to which in any area or which would so limit the freedom of Parent, the Company last year Innovate or any of their respective Affiliates after its Subsidiaries paid, in the Effective Time aggregate, $100,000 or more;
(Bl) contains any Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of Innovate or any of its Subsidiaries;
(m) any Contract with any Governmental Authority;
(n) any power of attorney, other than powers of attorney provided by Innovate and its Subsidiaries in the Ordinary Course of Business;
(o) any agreement that gives rise to any material exclusivity, “most favored nation”, rights payment or benefit as a result of first refusal, rights the performance of first negotiation this Agreement or similar obligations any of the other Contemplated Transactions;
(p) any Contract with (i) an executive officer or restrictions that are binding on the Company director of Innovate or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets such executive officer’s or securities of a third party director’s immediate family members or (including standstill agreementsii) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial an owner of more than five percent or more (5%) of the voting securities power of Company; the outstanding capital stock of Innovate or (Ciii) affiliate to the Knowledge of Innovate, any “related person” (as such term is defined in Rule 12b-2 promulgated within the meaning of Item 404 of Regulation S-K under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇Securities Act) of any such officer, director or beneficial owner; andowner (other than Innovate or its Subsidiaries);
(xivq) any Contract relating to the acquisition or disposition of any material interest in, or any material amount of, property or assets of Innovate or any of its Subsidiaries (whether by merger, stock sale, asset sale or otherwise) or for the grant to any Person of any preferential rights to purchase any of their assets, other than in the Ordinary Course of Business consistent with past practice;
(r) any Contract containing any provisions requiring any of Innovate or its Subsidiaries to indemnify any other party, other than commercial Contracts entered into the Ordinary Course of Business consistent with past practices;
(s) except to the extent a Contract is described in the clauses above, any Contract not entered into in the Ordinary Course of Business in excess of $500,000; or
(t) any other agreement (or group of related agreements) the performance of which requires aggregate payments from Innovate or any of its Subsidiaries in excess of $500,000 or that is material to Innovate or its Subsidiaries. Innovate has delivered or made available to the Company accurate and complete (except for applicable redactions thereto) copies of all material written Innovate Contracts, including all amendments thereto. There are no Innovate Material Contracts that are not in written form. Neither Innovate nor any Subsidiary of Innovate has, nor to the Knowledge of Innovate, has any other party to an Innovate Material Contract required (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Innovate or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (t) above or any Innovate Contract listed in Section 3.13(f) or Section 3.15 of the Innovate Schedule of Exceptions (any such agreement, contract or commitment, a “Innovate Material Contract”) in such manner as would permit any other party to cancel or terminate any such Innovate Material Contract, or would permit any other party to seek damages which would reasonably be expected to be filed by the Company pursuant material. As to Item 601(a)(10) Innovate and its Subsidiaries, as of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of Agreement, each Company Innovate Material Contract listedis valid, or required to be listedbinding, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding enforceable and in full force and effect has not had effect, subject to: (i) Laws of general application relating to bankruptcy, insolvency and would not reasonably be expected to havethe relief of debtors; and (ii) rules of Law governing specific performance, individually or in the aggregate, a Material Adverse Effect on the Company, injunctive relief and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companyequitable remedies.
Appears in 2 contracts
Sources: Merger Agreement (Innovate Biopharmaceuticals, Inc.), Merger Agreement (Innovate Biopharmaceuticals, Inc.)
Material Contracts. (a) Section 5.14 For purposes of the this Agreement, a “Company Disclosure Schedule lists each Contract” shall mean any of the following Contracts, whether written or oral, agreements to which the Company or any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):bound:
(i) any Contract agreement that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act);
(ii) any agreement that is not terminable for convenience by the Company or series its Subsidiary upon not more than 30 days’ notice at no charge, that (A) purports to restrain or limit the ability of related Contracts the Company or any of its Affiliates to compete or engage in any line of business or the localities in which the Company or any of its Affiliates may conduct business, (B) provides for exclusivity by the Company or any of its Affiliates with respect to any products or services sold or purchased by the Company or any of its Affiliates, (C) extends “most favored nation” or similar pricing to any Person, or (D) provides for the purchasenon-solicitation of any Person;
(iii) any agreement that requires, receiptor would reasonably be expected to result in, lease any payment by the Company or use its Subsidiaries in excess of materials$1,000,000 in the Company’s fiscal year ending February 28, supplies2011 or any subsequent fiscal year or which requires, goodsor would reasonably be expected to result in, servicesany payment to the Company or its Subsidiaries in excess of $1,000,000 in the Company’s fiscal year ending February 28, equipment 2011 or other assets involving future payments any subsequent fiscal year;
(iv) any agreement relating to Indebtedness owed by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregateparties;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition disposition, directly or indirectly, of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed continuing material obligations;
(vi) any agreement with an executive officer of the Company, other than agreements under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(vii) any agreement of indemnification or any guaranty of a material obligation by the Company or any of its Subsidiaries of a third party, other Person, in each case than any agreement entered into outside in connection with the sale or license by or to the Company or any of its Subsidiaries of products or services in the ordinary course of business;
(xiiiviii) any material Contracts agreement with any Governmental Authority providing for the purchase of the Company’s products by such Governmental Authority;
(Aix) officer any agreement set forth in clauses (i), (iii), (iv) or director of (vi) above or clause (xiii) below containing any “change in control” or similar provisions with respect to the Company or any of its Subsidiaries Subsidiaries;
(x) any collective bargaining agreements (including memoranda of understanding or extension agreements);
(xi) any agreement with any beneficial owner of more than 5% of the outstanding Company Common Stock;
(xii) any settlement agreement which materially affects the conduct of the Company’s or any of its Subsidiaries’ businesses;
(xiii) any other employee who agreement that is one of the twenty most highly compensated employees of material to the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (taken as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownera whole; and
(xiv) any other Contract required to be filed agreement that by its terms would prohibit or materially delay the Company pursuant to Item 601(a)(10) of Regulation S-K consummation of the SECMerger or any of the other transactions contemplated by this Agreement.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 3.15(b) of the Company Disclosure Schedule (including all amendmentslists each Company Contract in existence on the date hereof. The Company has previously made available to Parent true, modifications, extensions complete and renewals thereto and waivers thereunder)correct copies of each Company Contract in existence on the date hereof. All of the Company Material Contracts are valid and binding obligations of on the Company and or its SubsidiariesSubsidiary, and as the case may be, and, to the Knowledge of the Company are binding obligations of the Company’s Knowledge, each other parties party thereto, and are in full force and effect (except those which are cancelledeffect, rescinded subject to applicable bankruptcy, insolvency, moratorium or terminated after the date other similar Laws relating to creditors’ rights and general principles of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiariesequity. Neither the Company nor any of its Subsidiaries norhas, and to the Knowledge Company’s Knowledge, none of the Companyother parties thereto have, violated in any other party thereto is in material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default or breach under the terms provisions of any Company Material Contract except for such instances and neither the Company nor any of default or breach that would not be reasonably likely to result in a Material Adverse Effect on its Subsidiaries has received written notice of any of the Companyforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Clearwater Paper Corp), Merger Agreement (Cellu Tissue Holdings, Inc.)
Material Contracts. (a) Section 5.14 3.12 of the Company Disclosure Schedule lists sets forth a list of each of the following ContractsContracts to which, whether written or oralas of the date of this Agreement, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedeach, a “Company Material Contract”):
(i) any each Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect not to (or otherwise restricting or limiting the freedom ability of the Company or any of its Subsidiaries to engage or Subsidiaries, if any, to) compete in any line of business or with any Person or in any geographic area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights to restrict the ability of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries, if any, to conduct business in any geographic area;
(xiii) agreements each Contract that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries not that exceed $250,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer, or similar preferential right to purchase or acquire assets any Company Assets;
(iv) all material Contracts (A) for the granting or securities receiving of a third party license, sublicense, or franchise (in each case, including standstill agreementsany such Contracts relating to any Intellectual Property) providing for or resulting in payment over $250,000 per year or (B) under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment over $250,000, in each case of clause (A) and (B);
(v) all partnerships, joint ventures, or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed, or secured by a third party any asset), except any such agreement with an aggregate outstanding principal amount not to acquire assets exceeding $100,000;
(vii) any agreement for the disposition or securities acquisition by the Company or any of its Subsidiaries with material obligations of the Company or any of its Subsidiaries (including standstill agreements)other than confidentiality obligations) remaining to be performed, or material Liabilities of the Company or any of its Subsidiaries continuing, after the date of this Agreement, of any material business or any material amount of assets other than in each case entered into outside the ordinary course of business;
(xiiviii) any material Contract providing for the indemnification by agreement, other than operating agreements of Subsidiaries of the Company that have been made available to Purchaser, restricting or any limiting the payment of its Subsidiaries dividends or the making of any Person distributions to stockholders, including intercompany dividends or under which distributions other than such restrictions or limitations that are required by applicable Law or the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessOrganizational Documents;
(xiiiix) any material Contracts Contract with any (A) officer or director an employee of the Company or any of its Subsidiaries Subsidiary involving annual payments over $100,000;
(or x) any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) Contract for the twelve-month periods ended November 30, 2009 development of Intellectual Property other than those entered into in the ordinary course of business with Company employees and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownercontractors; and
(xivxi) all material agreements with any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECGovernmental Authority.
(b) The A true and complete copy of each Company has Material Contract (including any related amendments) entered into prior to the date of this Agreement delivered or Made Available has been made available to Parent complete and accurate copies of each Company Material Contract listed, or required Purchaser prior to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms)Agreement. Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on Effect. Except as would not, individually or in the Companyaggregate, and no written notice reasonably be expected to terminate and no written notice of an intent to terminatehave a Company Material Adverse Effect, in whole or part, any Material Contract has been received by (i) neither the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries such Subsidiary nor, to the Knowledge of the Company, any other party thereto party, is in breach of or default or breach under any such Company Material Contract, (ii) as of the terms date of this Agreement, there are no material disputes in connection with any such Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract except for has given written notice of its intent to terminate or otherwise seek a material amendment to such instances of default or breach that would not be reasonably likely to result in a Company Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fusion Fuel Green PLC), Stock Purchase Agreement (Ilustrato Pictures International Inc.)
Material Contracts. (a) Except for this Agreement or as set forth in Section 5.14 3.17 of the Company Disclosure Schedule lists each Schedules, and other than any Company Plans, as of the following ContractsAgreement Date, whether written or oral, to which none of the Company or any of its the Company Subsidiaries is a party to or bound by which it is bound as (each of the date following, together with the engagement letters set forth on Section 3.8 of this Agreement (each such Contract listed or required to be so listedthe Company Disclosure Schedules, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments that would be required to be filed by or to the Company or any as a “material contract” pursuant to Item 601(b)(10) of its Subsidiaries of more than $200,000 in Regulation S-K promulgated by the aggregate (SEC, other than Contracts involving payments to the Company entered into those agreements and arrangements described in the ordinary course of business, including investment banking contractsItem 601(b)(10)(iii);
(ii) any material sales agency, sales representation, distributorship or franchise agreementContract with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to be disclosed in the Company SEC Reports but has not been disclosed;
(iii) any Contract that contains a put, call, right of first refusal or series of related Contracts involving payments by or similar right pursuant to which the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of Company Subsidiary could be required to purchase or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit undersell, or triggering a price adjustmentoffer for purchase or sale of any business, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or assets of any other equity;
Person or any real property (vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixiv) all leases any Contract relating to the borrowing or subleases for real or personal property involving annual expense lending of Indebtedness in excess of $1,000 50,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Contract that is a settlement, conciliation or similar agreement between the Company or any Company Subsidiary and not cancelable any Governmental Authority pursuant to which the Company or a Company Subsidiary will be required after the date of this Agreement to pay any material monetary obligations;
(vi) any Contract between the Company or any Company Subsidiary, on the one hand, and any third Person, on the other hand (A) materially limiting the freedom or right of the Company or any Company Subsidiary (or, following the Closing, Parent or any of its Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, or (without premium C) containing exclusivity obligations or penaltyotherwise materially limiting the freedom or right of the Company or any Company Subsidiary to solicit, sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person;
(vii) within six months;any Contract between the Company or any Company Subsidiary and a third Person (A) relating to the disposition of any assets or business of the Company and the Company Subsidiaries with a fair market value in excess of $50,000 or (B) relating to the acquisition of any assets or business of, or ownership interests in, any third Person with a fair market value in excess of $50,000, in each case of clauses (A) and (B), whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of the Company or any Company Subsidiary;
(viii) any Contract between the Company or any Company Subsidiary and any third Person that establishes a joint venture, partnership or limited liability company;
(ix) any Contract that by its express terms requires the Company or any Company Subsidiary, or any successor to, or acquirer of, the Company or any Company Subsidiary, to make any material payment to another Person as a result of a change of control of the Company or any such Company Subsidiary (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(x) any Contract that (A) limits prohibits the declaration or payment of dividends or distributions in any material respect of the freedom capital stock of the Company or any Company Subsidiary, the pledging of its Subsidiaries to engage the capital stock or compete in any line other equity interests of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any Company Subsidiary or the issuance of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements guaranty by the Company or any Company Subsidiary;
(xi) any Contract (excluding in each case Contracts entered into in the ordinary course of its Subsidiaries not business consistent with past practice and agreements with employees or independent contractors) pursuant to acquire assets or securities of a third party which (including standstill agreementsa) or agreements by a third party not to acquire assets or securities of both (i) the Company or any Company Subsidiary is granted a license to, including any covenant not to sue under, any material Intellectual Property Right owned by any third party that is necessary for or used by the Company or any Company Subsidiary in their respective businesses as currently conducted, and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the Company or any Company Subsidiary in an amount having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or (b) both (i) the Company or any Company Subsidiary grants a third party a license to, including any covenant not to sue under, any material Company Intellectual Property and (ii) that requires by its Subsidiaries terms or is reasonably expected to require the payment or delivery by the counterparty thereto of cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024;
(including standstill xii) any CBAs;
(xiii) any Contract with any supplier that involved the payment of more than $50,000 in the Company’s last fiscal year;
(xiv) any material Contract with any university or other academic institution, research center, international organization or Governmental Authority having an expected value in excess of $50,000 in the fiscal year ending December 31, 2024, or in any single fiscal year thereafter, other than any sponsored research agreements), in each case clinical trial site agreements, material transfer agreements, sponsorship agreements or grant agreements entered into outside in the ordinary course of business;
(xiixv) any material Contract providing for that indemnifies any director or executive officer of the Company or any Company Subsidiary (other than any indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any Company Subsidiary or Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent); or
(xvi) any Contract that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Company Subsidiary after the date hereof in an amount in excess of its Subsidiaries of any Person or under which $50,000 in the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECaggregate.
(b) The Company has prior to the date Each of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelledeffect, rescinded and represents a valid and binding obligation of the Company or terminated after the date of this Agreement a Company Subsidiary, enforceable in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by its terms against the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norSubsidiary (as the case may be) and, to the Knowledge of the Company, any other party thereto thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity). Neither the Company nor any Company Subsidiary is in default material breach of or breach default, with or without notice, lapse of time or both, under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely Contract, nor, to result in a Material Adverse Effect on the Company’s Knowledge, is any other party to any such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Material Contracts. (a) Section 5.14 of Except for agreements, contracts, plans, leases, arrangements or commitments disclosed in SCHEDULE 3.12 or any other schedule to this Agreement, the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is not a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):subject to:
(i) any Contract lease providing for annual rentals of $10,000 or series of related Contracts more;
(ii) any contract for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for annual payments by or to the Company of $10,000 or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreementmore;
(iii) any Contract sales, distribution or series other similar agreement providing for the sale by the Company of related Contracts involving materials, supplies, goods, services, equipment or other assets providing for annual payments by in 1998 or thereafter to the Company of $25,000 or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar contract, arrangement or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregateagreement;
(v) any Contract restricting the payment of dividends contract relating to indebtedness for borrowed money or the repurchase deferred purchase price of stock property (whether incurred, assumed, guaranteed or other equitysecured by any asset), except contracts relating to indebtedness incurred in the ordinary course of business in an amount not exceeding $5,000;
(vi) any collective bargaining agreementslicense agreement, franchise agreement or agreement in respect of similar rights granted to or held by the Company;
(vii) any material joint ventureagency, profit sharingdealer, partnership agreements sales representative or other similar agreementsagreement;
(viii) any Contracts contract or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract other document that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;Closing Date; or
(xiix) agreements by the Company any other contract or any of its Subsidiaries commitment not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), made in each case entered into outside the ordinary course of business;
(xii) any business that is material Contract providing for to the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior Each agreement, contract, plan, lease, arrangement and commitment disclosed in any schedule to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in disclosed pursuant to Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are 3.12(a) is a valid and binding obligations agreement of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect effect, except as may be limited by bankruptcy and other laws affecting creditors' rights generally, and by general principles of equity (except those which are cancelled, rescinded whether considered in a proceeding in equity or terminated after the date of this Agreement in accordance with their termsat law), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by neither the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge knowledge of the CompanyCompany and Sellers, any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances of default agreement, contract, plan, lease, arrangement or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companycommitment.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lionbridge Technologies Inc /De/), Stock Purchase Agreement (Lionbridge Technologies Inc /De/)
Material Contracts. (a) Except for Financing Contracts, Non-Recourse Notes and Credit Enhancements, Section 5.14 4.13 of the Company Seller Disclosure Schedule lists each Letter sets forth, as of the following Contractsdate hereof, whether written a true, complete and correct list of every contract, agreement, loan, lease, license, guarantee, understanding or oralcommitment (each such item, a "Contract") to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
that (i) any Contract or series of related Contracts provides for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving aggregate future payments by the Company or any Company Subsidiary, or to the Company or any of its Subsidiaries Company Subsidiary, of more than $200,000 in the aggregate 50,000 and has an unexpired term exceeding one year and may not be canceled upon 60 days' notice without any liability, penalty or premium (other than Contracts involving payments to the Company excluding purchase orders and invoices entered into or incurred in the ordinary course of business, including investment banking contracts);
; (ii) any material sales agencywas entered into by the Company or a Company Subsidiary with a stockholder, sales representationofficer, distributorship director or franchise agreement;
significant employee of the Company, a Company Subsidiary or Seller (other than contracts identified in Section 4.9 of the Seller Disclosure Letter); (iii) any Contract is a collective bargaining or series of related Contracts involving payments by similar agreement; (iv) guarantees or to indemnifies or otherwise causes the Company or any Company Subsidiary to be liable or otherwise responsible for the obligations or liabilities of its Subsidiaries of more than $50,000 in any other Person or provides for a charitable contribution by the aggregate that requires consent of Company or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
Company Subsidiary; (v) involves an agreement with any Contract restricting the payment of dividends bank, finance company or the repurchase of stock similar organization for borrowed money or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom indebtedness of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, Company Subsidiary; (vi) materially restricts the Company or any of their respective Affiliates after Company Subsidiary from engaging in any business or activity anywhere in the Effective Time or world; (Bvii) contains any material exclusivityis an employment agreement, “most favored nation”, rights of first refusal, rights of first negotiation consulting agreement or similar obligations arrangement with any Person who is an employee or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities former employee of the Company or any of its Subsidiaries Company Subsidiary (including standstill agreementseach, a "Company Employee"), or any other Person (other than Contracts identified in each case entered into outside Section 4.9 of the ordinary course of business;
Seller Disclosure Letter); (xiiviii) any material Contract providing is an agreement for the indemnification by the Company purchase or any sale of its Subsidiaries a portfolio of Financing Contracts or Non-Recourse Notes with an aggregate value in excess of $500,000; (ix) is an agreement pursuant to which any Person is entitled or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any obligated to (A) officer manage, service, administer, enforce or director of the Company make collections on any Financing Contract or any of its Subsidiaries (Non-Recourse Note or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record repossess or beneficial owner otherwise convert the ownership of five percent any Portfolio Property or more to sell or otherwise dispose of Portfolio Property; (x) is an agreement with a collection agency for the voting securities collection of Companypast-due payments under Financing Contracts or Non-Recourse Notes; or (Cxi) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) an agreement or “associates” (commitment by investors to purchase any Non-Recourse Notes or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listedFinancing Contracts, or required interests on participations therein, or an agreement or commitment to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, sell any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.Non-Recourse
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fidelity Leasing Inc), Stock Purchase Agreement (Resource America Inc)
Material Contracts. (a) Except as set forth on Section 5.14 3.08(a) of the Company Disclosure Schedule lists each of the following ContractsLetter, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required Agreement, neither Seller nor any of its Affiliates is a party to be so listed, a “Company Material Contract”):any of the following relating exclusively to the Business:
(i) any Transferred Contract (other than any Transferred IP Agreement) the performance of which is reasonably expected to involve annual payments on the part of Seller or series a Selling Affiliate or any other Person in excess of related Contracts $500,000 (excluding sales orders and purchase orders issued in the ordinary course of business consistent with past practice);
(ii) any Transferred Contract that is a joint venture, partnership or other similar agreement;
(iii) any Transferred Contract which limits or purports to limit the ability of Seller or any Selling Affiliate to (A) compete in any line of business or with any Person or in any geographic area or during any period of time, (B) own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Transferred Asset or which would so limit or purport to limit the freedom of Buyer or any of its Affiliates after the Applicable Closing Date, or (C) solicit for employment or employ any Person;
(iv) any Transferred Contract that grants a Lien (other than a Permitted Lien) on any Transferred Asset;
(v) any Transferred Contract that provides for the purchasesale of any Transferred Asset or the grant of any preferential rights to purchase any Transferred Asset, receiptin each case other than sales of Inventory in the ordinary course of business consistent with past practice;
(vi) any Transferred Contract under which Seller or any Selling Affiliate has guaranteed any liabilities or obligations of any other Person;
(vii) any Transferred Contract that is a sales, lease distribution or use other similar agreement providing for the sale by Seller or any Selling Affiliate of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or (excluding any agreement between Seller and any of its Subsidiaries Affiliates or between Affiliates of more than $200,000 in the aggregate (other than Contracts involving Seller) and that is expected to involve annual payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company Seller or any Selling Affiliate in excess of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements250,000;
(viii) any Contracts Transferred Contract that is an option, license (other than any Transferred IP Agreement), franchise or series similar agreement;
(ix) any Transferred Contract that is an agency, dealer, sales representative, marketing or other similar agreement that is expected to involve annual payments on the part of related Contracts relating Seller or a Selling Affiliate in excess of $250,000;
(x) the Transferred IP Agreements; or
(xi) any other Transferred Contract that is material to the acquisition or disposition of Business, taken as a material amount of assets outside whole, and not made in the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or consistent with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECpast practice.
(b) The Company has prior to Section 3.08(b) of the Disclosure Letter sets forth, as of the date of this Agreement delivered or Made Available Agreement, all of the Commingled Contracts that are Transferred Contracts and that are material to Parent the Business, taken as a whole.
(c) Seller has made available in the Data Room a correct and complete and accurate copies copy of each Company Material Contract listed, or other document required to be listed, in disclosed on Section 5.14 3.08(a) or Section 3.08(b) of the Company Disclosure Schedule Letter (including all amendmentseach, modifications, extensions and renewals thereto and waivers thereunder). All of the Company a “Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their termsContract”), except where (i) in the failure case of purchase orders or (ii) in the case of any Contract or other document required to be valid disclosed on Section 3.08(b) of the Disclosure Letter, (A) to the extent the portion thereof relating to any business (other than the Business) of Seller or any of its Affiliates has been redacted therefrom or (B) for the omission of pricing schedules containing both pricing for the Business and binding and pricing for any other business of Seller or any of its Affiliates (provided that the pricing for the Business contained in full force and effect such pricing schedules has not had and otherwise been made available in the Data Room). Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to be material to the Business, taken as a whole, each Material Adverse Effect Contract is valid and binding on Seller and any Affiliates of Seller that are parties thereto and, to the Companyknowledge of Seller, each other party thereto, and no written notice is in full force and effect and is enforceable in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to terminate creditors’ rights generally and no written notice (ii) the availability of an intent to terminate, injunctive relief and other equitable remedies and principles (whether considered in whole a proceeding at law or part, in equity). Neither Seller nor any Selling Affiliate is in material breach or default under any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norto which it is a party, and, to the Knowledge knowledge of Seller, no event has occurred that with notice or lapse of time would constitute a material breach or default under any Material Contract. To Seller’s knowledge, none of the Company, other parties to any other party thereto Material Contract is in breach or material default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companythereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Biomet Inc), Asset Purchase Agreement (LVB Acquisition, Inc.)
Material Contracts. (a) Section 5.14 3.20(a) of the Company Disclosure Schedule lists Letter sets forth, as of the date of this Agreement, a correct and complete list of each of the following Contractstypes of Contracts to which the Company, whether written any Company Sharing Company (to the extent applicable) or oralany of their respective Subsidiaries is a party, or by which any of their respective properties or assets is bound:
(i) each Contract that, (A) limits or restricts the Company, any Company Sharing Company or any of their Subsidiaries from competing in any line of business or with any Person in any geographic region, (B) contains exclusivity obligations or restrictions binding on the Company, any Company Sharing Company or any of their respective Subsidiaries, (C) requires the Company, any Sharing Company or any of their respective Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (D) provides for rights of first refusal or offer or any similar requirement or right in favor of any third party in respect of a Minority Investment Entity, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture, partnership, limited liability company or similar agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $10 million individually;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $5 million;
(v) each Contract that is an acquisition agreement or a divestiture agreement or agreement for the sale, lease or license of any business or properties or assets of or by the Company (by merger, purchase or sale of assets or stock) entered into since December 31, 2014 or pursuant to which (A) the Company has any outstanding obligation to pay after the date of this Agreement consideration in excess of $5 million or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $5 million, excluding, in each case, (x) any Contract relating to Program Rights and (y) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or of 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 is a party has continuing “earn-out” or by which it is bound as similar obligations that could result in payments in excess of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 5 million; in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreementsContract relating to Program Rights under which it would reasonably be expected that the Company and its Subsidiaries would make annual payments in excess of $5 million per year;
(viii) any Contracts network affiliation Contract or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)similar Contract;
(ix) all leases any Contract relating to cable or subleases satellite transmission or retransmission with MVPDs that reported more than 50,000 paid subscribers to the Company, any Company Sharing Company or any of their respective Subsidiaries for real March 2017 with respect to either (A) the Company’s WGN America cable service or personal property involving annual expense in excess of $1,000 and not cancelable by the (B) at least one Company (without premium or penalty) within six monthsStation;
(x) any Contract that is a Sharing Agreement and any related option agreement (A) limits in any material respect the freedom of other than those among the Company or any of and its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries);
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of Contract that is a channel sharing agreement with a third party (including standstill agreements) or agreements by a third party not parties with respect to acquire assets the sharing of spectrum for the operation of two or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessmore separately owned television stations;
(xii) [reserved];
(xiii) any material Contract providing for with a Governmental Authority (other than as disclosed on Section 3.12 of the indemnification Company Disclosure Letter);
(xiv) any material collective bargaining agreement or other material Contract with any labor organization;
(xv) any Contract not terminable at will by the Company or any of its Subsidiaries Subsidiary for the employment of any Person executive officer or under individual employee at the vice president level or above on a full-time, part-time or consulting basis with base compensation in excess of $350,000;
(xvi) any Contract (other than those for Program Rights) pursuant to which the Company or any of its Subsidiaries has guaranteed any liabilities sold or obligations traded commercial air time in consideration for property or services with a value in excess of any other Person, $500,000 in each case entered into outside the ordinary course lieu of businessor in addition to cash;
(xiiixvii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who each Contract that is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company as a “material contract” pursuant to Item 601(a)(10601(b)(10) of Regulation S-K under the Securities Act; and
(xviii) any Contract not otherwise disclosed in Section 3.20 of the SECCompany Disclosure Letter (other than those for Program Rights) under which as of December 31, 2016, it was reasonably expected that the Company and its Subsidiaries would receive or make payments of $3 million or more during calendar year 2017, except for those Contracts that can be cancelled by any party thereto without cause on less than 90 days’ notice. Each Contract of the type described in clauses (i) through (xviii) is referred to herein as a “Company Material Contract”.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Except for any Company Material Contract listed, that has terminated or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement expired in accordance with their terms), its terms and except where the failure to be valid and binding and in full force and effect as has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any each Company Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries noris valid and binding and in full force and effect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Exceptions. Except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party thereto to a Company Material Contract, is in violation of or in default or breach under the terms any provision of any such Company Material Contract except for such instances Contract. True and complete copies of default or breach that would not be reasonably likely the Company Material Contracts and any material amendments thereto have been made available to result in a Material Adverse Effect on Parent prior to the Companydate of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Tribune Media Co), Merger Agreement (Sinclair Broadcast Group Inc)
Material Contracts. (a) Section 5.14 of the Company Disclosure Except as disclosed in Schedule lists each of the following Contracts3.10, whether written or oral, to which the Company or any of its Subsidiaries ILDC is not a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease (whether of real or series personal property), other than leases which in the aggregate provide for annual payments of related Contracts less than $50,000; (ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future that will continue in effect after the Closing other than such agreements which in the aggregate provide for payments of less than $50,000; (iii)any sales, distribution or other similar agreements providing for the sale by or to the Company ILDC or any of its Subsidiaries of more than $200,000 materials, supplies, goods, services, equipment or other assets that will continue in effect after the Closing involving payments in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course excess of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
25,000; (iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
arrangement; (v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
; (ixvi) all leases any agreement relating to indebtedness for borrowed money or subleases the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset); (vii)any license, franchise or similar agreement other than licenses, franchises or agreements which in the aggregate provide for real payments of less than $50,000; (viii) any agency, dealer, sales representative, marketing or personal property other similar agreements that will continue in effect after the Closing involving annual expense payments in excess of $1,000 and not cancelable by the Company 25,000; (without premium or penalty) within six months;
(xix) any Contract agreement that (A) limits in any material respect the freedom of the Company ILDC or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company ILDC or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;Closing Date; (x) any material agreement with:
(xiA) agreements by the Company any Stockholder or any of its Subsidiaries not Affiliates, (B) any Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to acquire assets vote by ILDC, or securities (C) any director or officer of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company ILDC or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company Affiliates or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “"associates” (" or members of any of their “the "immediate family”) " (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerofficer; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.or
Appears in 2 contracts
Sources: Share Exchange Agreement (Old Night Inc), Share Exchange Agreement (Old Night Inc)
Material Contracts. (a) Except as set forth in Section 5.14 4.20 of the Company Disclosure Schedule lists each or as filed as an exhibit with any Company SEC Document, and other than any Company Benefit Plan set forth on Section 4.17 of the following ContractsCompany Disclosure Schedules, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party or by which it is bound is, as of the date of this Agreement hereof, a party to or bound by any loan or credit agreement, note, bond, mortgage, indenture, lease or other binding contract, agreement or commitment (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract that has been or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments would be required to be filed as a “material contract” by or to the Company or any pursuant to Item 601(b)(10) of its Subsidiaries Regulation S-K of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)SEC;
(ii) any material sales agency, sales representation, distributorship that establishes or franchise agreementgoverns a partnership or joint venture or similar arrangement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofis an indenture, a loss of benefit undercredit agreement, or triggering a price adjustmentloan agreement, right of renegotiation security agreement, guarantee, note, mortgage or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments agreement providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom indebtedness of the Company or any of its Subsidiaries to engage or compete in any line an amount in excess of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time$1,000,000;
(xiiv) agreements by the Company with a Top Customer or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or Top Supplier and under which the Company or any of its Subsidiaries has guaranteed any liabilities made or obligations received payments in excess of any $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 Person, in each case than purchase and sale orders entered into outside in the ordinary course of businessbusiness consistent with past practice);
(xiiiv) 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 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 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 Contracts with any to the Company and its Subsidiaries, taken as a whole);
(Ax) officer that provides for an obligation or director liability of the Company or any of its Subsidiaries (whether absolute, accrued, contingent or any other employee who is one otherwise) as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the twenty most highly compensated employees 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 material respect the ability of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more any Subsidiary of the voting securities Company to compete in any material line of Company; business or in any geographic area, or that limits in any material respect the Persons to whom the Company can sell products or services;
(Cxii) affiliate (as such term is defined in Rule 12b-2 promulgated under that requires the ▇▇▇▇ ▇▇▇) Company or “associates” (or members of any of their “immediate family”its Subsidiaries to provide business, distribution or investment opportunities or pricing to any Person on an exclusive or most favored nation basis;
(xiii) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officerthat is a hedge, director collar, option, forward purchasing, option, swap, derivative or beneficial ownersimilar Contract; andor
(xiv) any other that is a Contract required to be filed by between the Company pursuant to Item 601(a)(10) or any of Regulation S-K its Subsidiaries on the one hand, and any of the SECCompany’s stockholders (in their capacity as such) on the 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 all Material Contracts.
(b) The Company has prior to the date of this Agreement delivered Except for breaches, violations or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those defaults which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect Effect, (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 terms, and no written notice to terminate the Company’s knowledge as of the date hereof each other party thereto, and no written notice is in full force and effect and (ii) neither the Company nor any of an intent its Subsidiaries, nor to terminatethe Company’s knowledge as of the date hereof any other party to a Material Contract, is in whole violation of or part, default under any provision of any Material Contract and no event has been received occurred that with the lapse of time or the giving of notice or both would constitute a violation of or default thereunder by the Company or any of its Subsidiaries. Neither the The Company nor any of its Subsidiaries noror such Subsidiary has performed all obligations required to be performed by it under each Material Contract and, to the Knowledge knowledge of the CompanyCompany as of the date hereof, any each other party thereto is to each Material Contract has performed all obligations required to be performed by it under such Material Contract, except in default each case as, individually or breach under in the terms of any aggregate, would not have or reasonably be expected to have a Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)
Material Contracts. (a) Section 5.14 4.11 of the Company Buyer Disclosure Schedule lists sets forth a list of each of the following ContractsContracts to which, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement Agreement, Buyer and its Subsidiaries is a party (each such Contract listed or required to be so listedeach, a “Company Buyer Material Contract”):
(i) any Contract or series “material contract” (as such term is defined in Item 601(b)(10) of related Contracts for Regulation S-K of the purchaseSEC as determined as of the date of this Agreement, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company entered into in the ordinary course of business, including investment banking contracts)Buyer;
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any each Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect not to (or otherwise restricting or limiting the freedom ability of the Company or any of Buyer and its Subsidiaries to engage or to) compete in any line of business or with any Person or in any geographic area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains to restrict the ability of Buyer and its Subsidiaries to conduct business in any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation geographic area;
(iii) each Contract (other than any Buyer Benefit Plan) providing for or similar obligations or restrictions resulting in payments by Buyer and its Subsidiaries that are binding on the Company exceeded annual payments by Buyer or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timeexceed $1,000,000;
(xiiv) agreements by all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Buyer Assets;
(v) all material Contracts (A) for the Company granting or any of its Subsidiaries not to acquire assets or securities receiving of a third party license, sublicense or franchise (in each case, including standstill agreementsany such Contracts relating to any Intellectual Property) providing for or agreements by resulting in a third party not payment in excess of $1,000,000 per year or (B) under which any Person is obligated to acquire assets pay or securities has the right to receive a royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment in excess of the Company or any of its Subsidiaries (including standstill agreements)$1,000,000, in each case entered into outside of clause (A) and (B), other than agreements with employees, non-exclusive licenses granted to Buyer’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms;
(vi) all partnership, joint venture or other similar agreements or arrangements;
(vii) any agreement with any director, officer or stockholder of Buyer or any Subsidiary that is required to be described under Item 404 of Regulation S-K of the SEC in the Buyer SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $5,000,000;
(ix) any agreement for the disposition or acquisition by Buyer and its Subsidiaries, with material obligations of Buyer and its Subsidiaries (other than confidentiality obligations) remaining to be performed or material Liabilities of Buyer and its Subsidiaries continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(xiix) any material Contract providing for agreement restricting or limiting the indemnification payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerapplicable Law; and
(xivxi) all material agreements with any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECGovernmental Authority.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Buyer Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is a valid and binding obligations agreement of the Company and Buyer or its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms)applicable Subsidiary, except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect on the CompanyEffect. Except as would not, and no written notice be material to terminate and no written notice of an intent to terminateBuyer, in whole (i) neither Buyer or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries such Subsidiary nor, to the Knowledge of the CompanyBuyer, any other party thereto party, is in breach of or default or breach under any such Buyer Material Contract, (ii) as of the terms date of this Agreement, there are no material disputes with respect to any Company such Buyer Material Contract except for and (iii) as of the date of this Agreement, no party under any Buyer Material Contract has given written notice of its intent to terminate or otherwise seek a material amendment to such instances of default or breach that would not be reasonably likely to result in a Buyer Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Recruiter.com Group, Inc.), Stock Purchase Agreement (GoLogiq, Inc.)
Material Contracts. (a) Section 5.14 Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports, as of the date hereof, none of the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract relating to the formation, creation, operation, management or series control of related Contracts for a partnership, joint venture, limited liability company or similar arrangement;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the purchaseordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), receiptor investment in, lease any person or use any Contract relating to the making of materialsany such loan, supplies, goods, services, equipment advance or other assets investment of more than $10,000,000;
(iv) any Contract involving future payments by or to Indebtedness of the Company or any of its Subsidiaries of more than $200,000 in the aggregate 10,000,000;
(v) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than Contracts involving payments to the Company entered into in the ordinary course or any of business, including investment banking contracts);
(iiits Subsidiaries) any material sales agency, sales representation, distributorship has directly or franchise agreement;
(iii) any Contract or series indirectly guaranteed Indebtedness of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity30,000,000;
(vi) any collective bargaining agreements;
(vii) Contract granting or evidencing a Lien on any material joint venture, profit sharing, partnership agreements properties or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line with value of business or with any Person or in any area or which would so limit the freedom of Parentmore than $30,000,000, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timeother than a Permitted Encumbrances;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiivii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities obligations that have not been satisfied or obligations performed (other than indemnification and confidentiality obligations) relating to the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer properties or director assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than $30,000,000 (by merger, purchase or sale of assets or stock or otherwise);
(viii) any Contracts involving any resolution or settlement of any Action with amount in controversy greater than $30,000,000;
(ix) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(x) any Contract involving a standstill or similar arrangement;
(xi) any Contract (other employee who is one than Contracts granting Company Options or Company RSs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the twenty most highly compensated employees Merger where (A) such Contract requires any payment in excess of $30,000,000 to be made by the Company 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 $30,000,000 in any calendar year;
(xii) 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 guaranty by the Company or any of its Subsidiaries;
(xiii) any Contract providing for (A) a license of Intellectual Property to the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record a license of Intellectual Property by the Company or beneficial owner any of five percent or more of the voting securities of Company; or its Subsidiaries to third parties, (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members an indemnity of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed person by the Company pursuant 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 Item 601(a)(10) of Regulation S-K any person by reason of the SEC.
ownership, use, sale or disposition of Intellectual Property; in each case of (bA) The Company has prior through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations business of the Company and its Subsidiaries, taken as a whole, and in each case of (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in ordinary course of business;
(xiv) any Contract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or any Subsidiary the right or option to purchase the Knowledge equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary (the contracts and agreements described in (A), (B) and (C), together, the “Control Agreements”); or
(xv) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company are binding obligations or any person beneficially owning five percent or more of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure outstanding Shares required to be valid disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act. Each such Contract described in clauses (i) to (xv) and binding and in full force and effect has not had and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company SEC Reports is referred to herein as a “Material Contract.”
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any (i) each Material Contract has been received by is a legal, valid and binding obligation of the Company or any of its Subsidiaries. Neither Subsidiaries party thereto and to the Company’s knowledge, the other parties thereto, in each case subject to the Bankruptcy and Equity Exception, (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge Company’s knowledge and as of the Companydate hereof, any other party thereto thereto, is in breach or violation of, or default under, any Material Contract and no event has occurred or breach under not occurred through the terms Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, the action or inaction of any Company Third Party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract except for and (iii) the Company and its Subsidiaries have not received any written claim or notice of default, termination or cancellation under any such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (Baring Asia Private Equity Fund v Co-Investment L.P.), Merger Agreement (Shi Yuzhu)
Material Contracts. (a) Section 5.14 of the Company Disclosure Except for agreements, contracts, plans, leases, arrangements or commitments disclosed in Schedule lists each of the following Contracts, whether written or oral, to which the Company 3.11 or any of its Subsidiaries is a party or by which it is bound other schedule to this Agreement, as of the date of this Agreement (each such Contract listed neither the Company nor any Subsidiary is a party to or required to be so listed, a “Company Material Contract”):subject to:
(i) any Contract lease providing for annual rentals of $150,000 or series more;
(ii) any contract relating to indebtedness for borrowed money or the deferred purchase price of related Contracts property (whether incurred, assumed, guaranteed or secured by any asset), except contracts relating to indebtedness incurred in the ordinary course of business in an amount not exceeding $250,000;
(iii) any contract for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for annual payments by the Company or any Subsidiary of $200,000 or more;
(iv) any sales, distribution or other similar agreement providing for the sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets providing for annual payments to the Company or any Subsidiary of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatemore;
(v) any Contract restricting the payment of dividends or the repurchase of stock agency, dealer, sales representative or other equitysimilar agreement of $250,000 or more;
(vi) any collective bargaining agreementsemployment agreement providing for annual payments or severance pay or post-employment liabilities or obligations of $150,000 or more;
(vii) any material joint venture, profit sharing, partnership agreements consulting agreement providing for annual payments of $150,000 or other similar agreementsmore;
(viii) any Contracts partnership, joint venture or series of related Contracts relating to the acquisition other similar contract, arrangement or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)agreement;
(ix) all leases any license agreement, franchise agreement or subleases agreement in respect of similar rights granted to the Company or any Subsidiary providing for real or personal property involving annual expense in excess payments of $1,000 and not cancelable by the Company (without premium 500,000 or penalty) within six monthsmore;
(x) any Contract license agreement, franchise agreement or agreement in respect of similar rights held by the Company or any Subsidiary providing for annual payments of $400,000 or more;
(xi) any contract or other document that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Subsidiary to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates Subsidiary after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessClosing Date;
(xii) any material Contract providing for the agreement of indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any guaranty other Person, in each case than customer agreements entered into outside in the ordinary course of businessbusiness consistent with past practices;
(xiii) any material Contracts mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, other than extensions of trade credit on customary terms in customer agreements entered into in the ordinary course of business consistent with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andpast practices;
(xiv) any other Contract required agreement relating to be filed by the Company pursuant to Item 601(a)(10) disposition or acquisition of Regulation S-K assets or any interest in any business enterprise outside the ordinary course of the SEC.business consistent with past practices;
(bxv) The Company has prior any collective bargaining agreements; or
(xvi) any other contract or commitment not made in the ordinary course of business that is material to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, Subsidiaries taken as a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companywhole.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Monotype Imaging Holdings Inc.)
Material Contracts. (a) Except as set forth in Section 5.14 4.5(a) of the Company Disclosure Schedule lists each Schedule, as of the date hereof neither the Company nor any of its Subsidiaries has entered into or is bound by any of the following types of Contracts (each a “Material Contract”):
(i) any Contracts with any Affiliate of the Company or its Subsidiaries;
(ii) any Contracts relating to any Indebtedness;
(iii) any Contracts under which the Company or any of its Subsidiaries has made or is obligated to make, directly or indirectly, any capital contribution to, or other investment in, any Person in any amount;
(iv) any Contracts prohibiting or restricting the ability of the Company or any of its Subsidiaries to conduct business in any geographical area, to solicit clients or to compete with any Person;
(v) any Contracts that provide for earn-outs or other similar contingent obligations to be paid by the Company or any of its Subsidiaries;
(vi) any Contracts for the Company’s or any Subsidiary’s purchase of materials, supplies, products or services, involving annual payments in excess of $100,000 in any year;
(vii) any joint venture, strategic alliance, partnership or similar Contract involving a sharing of profits or expenses or payments based on revenues or profits of the Company or any of its Subsidiaries;
(viii) any reinsurance Contracts (each a “Reinsurance Agreement”) and any trust agreements, letters of credit or other Contracts relating to collateral or security provided in connection with any Reinsurance Agreement;
(ix) any investment management, custody or similar Contracts specifically relating to the assets of the Company and its Subsidiaries;
(x) any Contract with any Governmental Authority;
(xi) any Contract under which (A) the Company or any of its Subsidiaries is granted rights by others in any Intellectual Property (other than (x) commercial off-the-shelf software with an aggregate annual cost of less than $25,000 or (y) agreements with the Company’s or any of its Subsidiary’s employees or contractors entered into in the ordinary course of business) or (B) the Company or any of its Subsidiaries has granted rights to others in Intellectual Property (other than customer agreements entered into in the ordinary course of business);
(xii) any Contracts between or among the Company or any Subsidiary and a third party, including joint and several undertakings and/or guarantees for the benefit of a third party, pursuant to which the Company or any Subsidiary has guaranteed or may otherwise be primarily or secondarily liable in respect to any obligation or liability owed to or for the benefit of a third party;
(xiii) any Contracts between the Company or any Subsidiary, on the one hand, and any Company Shareholder or any Affiliate of any Company Shareholder (other than the Company or any of its Subsidiaries) or any officer or director of the Company or any Subsidiary, on the other hand;
(xiv) indemnification agreements, undertakings and obligations of the type described at Section 6.11(a);
(xv) (i) any Contract with any third party administrator and any Contract pursuant to which the Company or any of its Subsidiaries provides services to a third party and (ii) any Contract with any other service provider that involves annual service fees in excess of $100,000;
(xvi) any Contract (or series of related Contracts) providing for the acquisition or disposition of any material lines of business, whether written business enterprise or oral, material assets of or by the Company or any of its Subsidiaries;
(xvii) Contracts relating to any Proceeding or settlement agreement to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedparty, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company claim related settlements within policy limits entered into in the ordinary course of business, including investment banking contracts);
(iixviii) any material sales agencymanagement, sales representationconsulting, distributorship independent contractor, employment, severance, bonus or franchise similar agreement;
(iiixix) any Contract or series of related Contracts involving (excluding any Reinsurance Agreement) that involves annual payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and 100,000 that is not cancelable by the Company terminable on notice of ninety (90) or fewer calendar days without premium penalty or penalty) within six monthspremium;
(xxx) any real property lease, sublease or similar Contract;
(xxi) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights change of first refusal, rights of first negotiation control” or similar obligations term or restrictions provision that are binding on the Company may be triggered, breached or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements violated by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of Company’s entering into this Agreement and consummating the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerTransactions; and
(xivxxii) any other each Contract entered into prior to the date hereof that is required to be filed by the Company as a “material contract” pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of under the SECSecurities Act.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Material Contract listedis valid, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by is enforceable against the Company or any of its Subsidiaries. Neither , as the Company nor any of its Subsidiaries norcase may be, and, to the Knowledge of the Company, each other party thereto in accordance with its terms, except as such enforcement may be limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally, or (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law. Each of the Company and its Subsidiaries has duly performed all of its obligations under each such Material Contract to the extent that such obligations have accrued. There are no existing defaults (or circumstances, occurrences, events or acts that, with the giving of notice or lapse of time or both that would reasonably be expected to become defaults) of the Company or its Subsidiaries or any other party thereto is in default or breach thereto, under any Material Contract. The Company has made available to Buyer prior to the terms date hereof complete copies of any Company all Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContracts.
Appears in 2 contracts
Sources: Share Acquisition Agreement (First Trinity Financial CORP), Share Acquisition Agreement (First Trinity Financial CORP)
Material Contracts. (a) Section 5.14 of Except for the Company Disclosure Schedule lists each of Contracts disclosed in SCHEDULE 3.12
(a) with respect to the following ContractsBusiness (other than the Excluded Assets), whether written or oral, to which the Company or any of its Subsidiaries Pennzoil is not a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease of personal property providing for annual rentals of $100,000 or series of related Contracts more;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either (A) annual payments by Pennzoil of $100,000 or to the Company more or any (B) aggregate payments by Pennzoil of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship 500,000 or franchise agreementmore;
(iii) any Contract agreement with reference to all or series a substantial portion of related Contracts involving payments by the output of a plant, a mine or other production facility or all or a substantial portion of all requirements of a customer of Pennzoil or of Pennzoil or to the Company any other Person providing for annual payments that exceed $1,000,000 or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companyextending beyond two years;
(iv) promissory notesany sales, loans, agreements, indentures, evidences of indebtedness distribution or other instruments similar agreement providing for the sale by Pennzoil of materials, supplies, goods, services, equipment or relating other assets that provides for either (A) annual payments to the lending Pennzoil of money, whether as borrower, lender $100,000 or guarantor, in amounts greater than more or (B) aggregate payments to Pennzoil of $25,000 in the aggregate500,000 or more;
(v) any Contract restricting the payment of dividends or the repurchase of stock partnership, tax partnership, joint venture or other equitysimilar agreement or arrangement;
(vi) any collective bargaining agreementsoption agreement, license agreement, franchise, or agreement in respect of similar rights granted or held by Pennzoil;
(vii) any material joint ventureagency, profit sharingdealer, partnership agreements sales representative, marketing or other similar agreementsagreement providing for annual payments of $100,000 or more;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Pennzoil to engage or compete in any line aspect of the sulphur business or with any Person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset or which would so limit the freedom of Parent, the Company or any of their respective Affiliates FRP after the Effective Time Closing Date;
(ix) any agreement (other than an Excluded Asset) with or for the benefit of any Affiliate of Pennzoil;
(Bx) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timelabor union contract;
(xi) agreements by the Company any agreement (other than an Excluded Asset) with respect to property, casualty or any other forms of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;insurance; or
(xii) any material Contract providing for the indemnification by the Company other agreement, commitment, arrangement or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, plan not made in each case entered into outside the ordinary course of business;
business which is material to the Business (xiiiother than the Excluded Assets) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (taken as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECa whole.
(b) The Company has prior Each Contract disclosed in any schedule to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in disclosed pursuant to this Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are 3.12 is a valid and binding obligations agreement of the Company Pennzoil and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries neither Pennzoil nor, to the Knowledge knowledge of the CompanyPennzoil, any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances Contract, nor, to the knowledge of Pennzoil, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default or breach that would thereunder. True and complete copies of each such contract have been delivered to FRP.
(c) Pennzoil's net per ton cost of transportation for sulphur (excluding rail car costs) from the ▇▇▇▇▇▇▇▇▇ Facility under its agreement with the Santa Fe Railway Company currently does not be reasonably likely exceed $20.00 per ton. This freight cost is subject to result in a Material Adverse Effect on annual escalation and is subject to adjustment when the CompanyTampa price exceeds $92.00 per ton.
Appears in 2 contracts
Sources: Asset Purchase Agreement (McMoran Exploration Co /De/), Asset Purchase Agreement (Freeport McMoran Sulphur Inc)
Material Contracts. (a) Section 5.14 Schedule 3.12 of the Company Seller Disclosure Schedule lists Letter sets forth a list of each of the following ContractsContracts to which, whether written or oralas of the date of this Agreement, to which the Company or any of its Subsidiaries Subsidiaries, if any, is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedeach, a “Company Material Contract”):
(i) any each Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect not to (or otherwise restricting or limiting the freedom ability of the Company or any of its Subsidiaries to engage or Subsidiaries, if any, to) compete in any line of business or with any Person or in any geographic area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights to restrict the ability of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries, if any, to conduct business in any geographic area;
(xiii) agreements each Contract (other than any Company Benefit Plan) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries not that exceed $250,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire assets any material Company Assets;
(iv) all material Contracts for the granting or securities receiving of a third party license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (including standstill 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 that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(vii) any agreement for the disposition or agreements acquisition by a third party not to acquire assets the Company or securities any of its Subsidiaries, if any, with material obligations of the Company or any of its Subsidiaries Subsidiaries, if any, (including standstill agreements)other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any material business or any material amount of assets other than in each case entered into outside the ordinary course of business;
(xiiviii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts agreement with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees top 10 customers of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 if any, taken as a whole, as applicable, and 2010; (B) record or beneficial owner of five percent or more the top 10 suppliers of the voting securities Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2022 fiscal year measured by the aggregate obligations paid or agreed to pay to or by the Company, as applicable;
(ix) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law;
(x) any Contract for the development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company; or (C) affiliate (as ’s standard form for such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerContracts; and
(xivxi) any other Contract required to be filed by the Company extent not set forth in Schedule 3.12(a) of the Seller Disclosure Letter pursuant to Item 601(a)(10) another subsection of Regulation S-K of the SECthis Section 3.12(a), all material agreements with any Governmental Authority.
(b) The A true and complete copy of each Company has Material Contract (including any amendments thereto) entered into prior to the date of this Agreement delivered or Made Available has been made available to Parent complete and accurate copies of each Company Material Contract listed, or required Buyer prior to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms)Agreement. Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on Effect. Except as would not, individually or in the Companyaggregate, and no written notice reasonably be expected to terminate and no written notice of an intent to terminatehave a Company Material Adverse Effect, in whole or part, any Material Contract has been received by (i) neither the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries such Subsidiary nor, to the Knowledge of the Company, any other party thereto thereto, is in breach of or default or breach under any such Company Material Contract, (ii) as of the terms date of this Agreement, there are no material disputes in connection with any such Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract except for has given written notice of its intent to terminate or otherwise seek a material amendment to such instances of default or breach that would not be reasonably likely to result in a Company Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Recruiter.com Group, Inc.), Stock Purchase Agreement (GoLogiq, Inc.)
Material Contracts. (a) Section 5.14 3.17 of the Company Seller's Disclosure Schedule lists each sets forth all of the following contracts related to the Business (the "Material Contracts"):
(1) Collective bargaining agreements or other contracts with any labor union, or any contract, whether written or oraloral (excluding any oral or written contract that is terminable-at-will under the laws of the relevant jurisdiction without severance obligations), to which for the Company employment of any Transferred Employee (as defined herein), or any agreement relating to loans to a Transferred Employee, or any retention, severance, change of its Subsidiaries is control or similar arrangement with a party or by Transferred Employee which it is bound would result in a payment becoming due as a result of the date Closing;
(2) Agreements or indentures relating to the borrowing of this Agreement money, equipment leases or financing, or to the mortgaging, pledging or otherwise placing a lien on any Purchased Asset;
(each such Contract listed 3) Contracts or required to be so listed, a “Company Material Contract”):
agreements (i) prohibiting it from freely engaging or competing in any Contract business anywhere in the world, or series of related Contracts for the purchase(ii) entered into restricting Seller's right to use or disclose any information in its possession;
(4) Partnership, receiptjoint venture, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by similar contract arrangements;
(5) Sales, distributorship, material purchase orders or other similar contract arrangements relating to the Company or any sale of a material quantity of Products;
(6) The Seller's Contracts with its Subsidiaries of Third Party Payors that represent more than $200,000 in the aggregate 100,000 of revenues on an annualized basis (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contractsexcluding government agencies);
(ii7) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts Any contract relating to the acquisition or disposition of a material amount any business of assets outside the ordinary course of business Seller (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix8) Contracts related to the licensing of Intellectual Property or Proprietary Rights, including those listed on Schedule 2.1(d);
(9) all leases Any contracts with a Third Party Payor or subleases for real any other third party that has terms which require Seller to be in any kind of exclusive relationship with, or personal property involving annual expense exclusively deal with, such Third Party Payor or other third party; or
(10) Any other contract which creates future payment obligations in excess of $1,000 50,000 in the aggregate and which by its terms does not cancelable terminate or is not terminable without penalty by the Company Seller upon notice of thirty (without premium 30) days or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECless.
(b) The Company Seller has prior furnished to the date of this Agreement delivered or Made Available to Parent Buyer true and complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule Material Contracts.
(including all amendments, modifications, extensions and renewals thereto and waivers thereunder). c) All of the Company Material Contracts are legal, valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect effect. Seller has not had duly performed all of its obligations under each Material Contract to the extent those obligations have accrued and no default, violation, or breach by Seller or, to Seller's Knowledge, any other party under any Material Contract has occurred which affects the enforceability of such Material Contract or any parties' rights thereunder, including without limitation rights of termination, modification and acceleration, except where any of the foregoing would not reasonably be expected to havenot, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto be Material.
(d) Seller is in default or breach under the terms compliance with all confidentiality and privacy provisions of any Company each Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dj Orthopedics Inc), Asset Purchase Agreement (Orthologic Corp)
Material Contracts. (a) Section 5.14 Except for this Agreement, as of the Company Disclosure Schedule lists each of the following Contractsdate hereof, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as (any contract of the date of type described in this Agreement (each such Contract listed or required Section 4.21(a) being referred to be so listed, herein as a “Company Material Contract”):
(i) any Contract outbound lease, license, sale or series of related Contracts other similar agreement providing for the purchase, receiptsale, lease or use license by the Company or any of materials, supplies, its Subsidiaries of goods, services, equipment Intellectual Property or other assets involving future that is expected to result in either (A) annual payments by or to the Company or any of its Subsidiaries of more than $200,000 in the 350,000 or more, or (B) aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of $1,000,000 or more than $50,000 in over the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofnext five (5) years, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, except for any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on contract between the CompanyCompany and/or any of its Subsidiaries;
(ivii) promissory notesany inbound lease, loanslicense, agreements, indentures, evidences of indebtedness purchase or other instruments providing similar agreement for the purchase, lease or relating license by the Company or any of its Subsidiaries of goods, services, Intellectual Property or other assets that is expected to result in either (A) annual payments by the lending Company or any of moneyits Subsidiaries of $350,000 or more, whether as borroweror (B) aggregate payments by the Company or any of its Subsidiaries of $1,000,000 or more over the next five (5) years, lender or guarantor, in amounts greater than $25,000 in except for any such contract between the aggregateCompany and/or any of its Subsidiaries;
(viii) any Contract restricting the payment of dividends contract or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that agreement evidencing (A) limits in any material respect the freedom outstanding indebtedness for borrowed money, or (B) an obligation of the Company or any of its Subsidiaries to engage guarantee, or otherwise indemnify or hold harmless any Person, in respect of indebtedness for borrowed money, in the case of each of clauses (A) and (B), in or for an amount of $350,000 or more, except for any such contract or agreement between the Company and/or any of its Subsidiaries;
(iv) any joint venture, partnership, strategic alliance, or similar agreement;
(v) any contract or agreement relating to the acquisition or disposition of any material business or any interest therein under which the Company or any of its Subsidiaries has any material outstanding rights or obligations;
(vi) any contract or agreement that limits, or purports to limit, in any material respect, the ability of the Company or any of its Subsidiaries to compete in any a line of business or with any Person or in any geographic area or which would so limit during any period of time;
(vii) any contract or agreement that, upon the freedom consummation of Parentthe transactions contemplated by this Agreement, the Company or will result in any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company Parent or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements)Subsidiaries, in each case entered into outside the ordinary course of business;
(xii) granting any rights or licenses to any material Contract providing for the indemnification by the Company Intellectual Property of any of Parent or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries Subsidiaries, to any Third Party; and
(or viii) any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate “material contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC, other than Item 601(b)(10)(iii)).
(bi) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Each Company Material Contract listedis in full force and effect, or required to be listed(ii) no written or, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice other claim of an intent to terminate, in whole default under or part, cancellation of any Company Material Contract has been received by the Company or any of its Subsidiaries. Neither , and (iii) neither the Company nor any of its Subsidiaries noris, in any material respect, in breach or violation of, or default under, any Company Material Contract, and, to the Knowledge of the Company, any no other party thereto is is, in any material respect, in breach or violation of, or default or breach under the terms of under, any Company Material Contract except for such instances Contract. As of default the date hereof, the Company has heretofore delivered or breach that would not be reasonably likely made available to result in a Parent true and complete copies of all Company Material Adverse Effect on the CompanyContracts.
Appears in 2 contracts
Sources: Merger Agreement (Powerdsine LTD), Merger Agreement (Microsemi Corp)
Material Contracts. (a) Section 5.14 Schedule 4.18 of the Company Disclosure Schedule lists each Letter sets forth a true and complete list, as of the following Contractsdate of this Agreement, whether written (provided, however, that the Company not be required to list any such agreements in Schedule 4.18 of the Company Disclosure Letter that are filed as exhibits to the Company SEC Documents) of:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act);
(ii) each contract that provides for the acquisition, disposition, license, use, distribution or oraloutsourcing of assets, services, rights or properties (other than Oil and Gas Properties) with respect to which the Company reasonably expects that the Company and its Subsidiaries will make annual payments in excess of $15,000,000;
(iii) each contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the Company or any of its Subsidiaries is a party (whether incurred, assumed, guaranteed or secured by which it is bound as any asset) in excess of the date of this Agreement (each such Contract listed $15,000,000, other than agreements solely between or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to among the Company or any of and its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the CompanySubsidiaries;
(iv) promissory noteseach contract for lease of personal property or real property (other than Oil and Gas Properties) involving aggregate payments in excess of $15,000,000 in any calendar year that are not terminable without penalty within 60 days, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating than contracts related to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatedrilling rigs;
(v) each contract containing any Contract restricting area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that, following the payment Effective Time, by virtue of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom Parent becoming an Affiliate of the Company as a result of the Transactions, would by its terms materially restrict the ability of Parent or any of its Subsidiaries to engage or compete in any line of business or with any Person or geographic area during any period of time after the Effective Time;
(vi) each contract involving the pending acquisition or sale of (or option to purchase or sell) any material amount of the assets or properties (including Hydrocarbons) of the Company or its Subsidiaries, taken as a whole, other than contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(vii) each contract for any Derivative Transaction;
(viii) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company;
(ix) each joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar contract requiring the Company or any of its Subsidiaries to make expenditures that would reasonably be expected to be in excess of $15,000,000 in the aggregate during the twelve (12)-month period following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(x) any material lease or sublease with respect to a Company Material Leased Real Property;
(xi) each collective bargaining agreement to which the Company is a party or is subject;
(xii) each agreement under which the Company or any of its Subsidiaries, on the one hand, has advanced or loaned any amount of money to any of the following, on the other hand (x) an executive officer or director of the Company or any Subsidiary of the Company, (y) a beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the Company Common Stock or (z) Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the Persons described in the foregoing clauses (x) or (y);
(xiii) any contract that provides for a “take-or-pay” clause or 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 50 MMcf (or, in the case of liquids, in excess of 8,333 barrels of oil equivalent) of Hydrocarbons of the Company or any of its Subsidiaries per day over a period of one month (calculated on a yearly average basis) or for a term greater than ten (10) years;
(xiv) any contract between the Company or any of its Subsidiaries, on the one hand, and any of their respective officers or directors, or any holder 5% or more of the outstanding shares of Company Common Stock (or any such Person’s Affiliates) on the other hand;
(xv) any contract that, upon the consummation of the Transactions, would (either alone or upon the occurrence of any additional acts or events, including the passage of time) result in any area payment or which would so limit benefit (whether of severance pay or otherwise) becoming due, or the freedom acceleration or vesting of any right to any payment or benefits, from Parent, Merger Sub, the Company or any of their respective Affiliates after Subsidiaries to any officer, director, consultant or employee of any of the Effective Time foregoing;
(xvi) any contract that would or would reasonably be expected to prevent, materially delay or materially impede the consummation of any of the Transactions; and
(Bxvii) each agreement that contains any material exclusivitystandstill, “most favored nation”” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal, 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, unit agreements or participation agreements affecting the business or the Oil and Gas Properties of first negotiation the Company or similar obligations or restrictions that are binding on any of its Subsidiaries, to which the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 respective Affiliates is subject, and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior is material to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations business of the Company and its Subsidiaries, and taken as a whole.
(b) Collectively, the contracts set forth in Section 4.18(a) are herein referred to as the Knowledge of the “Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect Contracts.” Except as has not had and would not be reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect Effect, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, each other party thereto, and no written notice is in full force and effect, subject, as to terminate enforceability, to Creditor’s Rights. Except as has not had and no written notice of an intent would not be reasonably likely to terminatehave, individually or in whole or partthe aggregate, any a Company Material Contract has been received by the Company or any of its Subsidiaries. Neither Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the Knowledge knowledge of the Company, is any other party thereto is to any such Company Contract in breach or default or breach under thereunder. The Company has heretofore made available to Parent complete and correct copies of the terms Company Contracts as of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companydate hereof.
Appears in 2 contracts
Sources: Merger Agreement (Range Resources Corp), Merger Agreement (Memorial Resource Development Corp.)
Material Contracts. (a) Section 5.14 2.8(a) of the Company Seller Disclosure Schedule lists each of the following ContractsLetter lists, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date hereof, the following Contracts primarily related to or otherwise material to the operation of the Business to which Sellers or any of their Controlled Affiliates is a party and which have not been entirely fulfilled or performed as of the date hereof, except for (v) this Agreement Agreement, (each such Contract listed or required w) any Benefit Plan, (x) Divided Commingled Contracts, (y) Contracts related to services to be so listedperformed under the Transitional Services Agreement and (z) any purchase orders, a invoices or other similar Contracts entered into or received in the Ordinary Course of Business (collectively, the “Company Material ContractContracts”):
(i) any Contract relating to any incurrence, assumption or series guarantee of related Contracts Indebtedness for the purchaseborrowed money by any Transferred Subsidiary or, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or with respect to the Company Business, Sellers or any of its Subsidiaries their Controlled Affiliates (as applicable) in excess of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)500,000;
(ii) any material sales agency, sales representation, distributorship joint venture agreement or franchise agreementpartnership agreement or other similar Contract memorializing any joint venture or partnership between the Business and a third party;
(iii) any Contract relating to the acquisition or series disposition of related Contracts involving any business, capital stock or other equity securities or assets of any Person (whether by merger, consolidation or other business combination, sale of stock or other securities, sale of assets or otherwise) entered into during the past five (5) years or under which the Business has any continuing obligation;
(iv) any Contract providing for payments by or to the Company Business estimated or any projected by Sellers, in good faith, to be in excess of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under1,000,000 per annum, or triggering a price adjustment, right $5,000,000 over the life of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregateContract;
(v) any Contract restricting that contains exclusivity obligations, right of first refusal or right of first offer, most favored nation obligations, “take or pay” obligations, or non-competition obligations or restrictions binding on the payment of dividends or the repurchase of stock or other equityBusiness;
(vi) any collective bargaining agreementsContract containing covenants that (A) restrict or purport to restrict the Business (or any of the owners thereof or their respective Affiliates) from any solicitation, hiring or engagement of any Person or the solicitation of any customer or (B) limit or purport to limit the freedom of any the Business (or any of the owners thereof or their respective Affiliates) to engage in any line of business, compete with any Person or operate in any geographic areas or markets;
(vii) any material joint venture, profit sharing, partnership agreements Contract (A) pursuant to which the Business receives from a third party a license or other similar agreementsright to use any material Intellectual Property used in the Business, other than (i) shrink-wrap, click wrap, and off-the-shelf software licenses, and other non-exclusive licenses of uncustomized software that is commercially available to the public generally, with aggregate fees of $250,000 or less, and (ii) licenses for Intellectual Property used by Sellers or their Controlled Affiliates in connection with the provision of services under the Transitional Services Agreement or (B) pursuant to which material Transferred Intellectual Property is licensed to a third party other than non-exclusive licenses granted in the Ordinary Course of Business in connection with the sale or licensing of products or services of the Business;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)Labor Agreement covering any Business Employees;
(ix) all leases any Contract pursuant to which the Business receives the services of independent contractors or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsother non-employee service providers;
(x) any Contract that grants a Lien (Aother than a Permitted Lien) limits in on any material respect the freedom Transferred Asset or material property or asset of the Company or any of its Transferred Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timeis not an Excluded Asset;
(xi) agreements by the Company any Contract with a Key Customer or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessKey Supplier;
(xii) any material Government Contract providing where the counterparty is a Governmental Authority and for which (x) the indemnification by period of performance has not expired or terminated or (y) final payment has not yet been received as of the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessdate hereof;
(xiii) any material Contracts with Contract relating to the settlement or conciliation of any Litigation (A) officer since April 1, 2021 and providing for payment by the Business in excess of $500,000 or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of pursuant to which the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under Business will have any outstanding obligation after the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; anddate hereof;
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10which any third party sales representative or other third party representative (a “Third Party”) is appointed to promote and solicit offers for the purchase of Regulation S-K products and services of the SECBusiness or the Transferred Subsidiaries in any territory outside of the United States (each, a “Foreign Sales Representative Agreement”);
(xv) any Affiliate Contract; and
(xvi) any Lease, any Landlord Lease and any agreement or instrument for the purchase, sale, transfer or encumbrance of any real property or interest therein, including the Owned Real Property.
(bi) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be and is a valid and binding and in full force and effect has not had and would not reasonably agreement of a Transferred Subsidiary, Sellers or their Affiliates, as applicable, except to the extent that enforceability may be expected to havelimited by applicable bankruptcy, individually insolvency, fraudulent conveyance, reorganization, moratorium or in other Laws affecting the aggregateenforcement of creditors’ rights generally, (ii) neither a Material Adverse Effect on the CompanyTransferred Subsidiary, and no written notice to terminate and no written notice of an intent to terminateSellers or their Affiliates, in whole or partas applicable, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the CompanySellers, any other party thereto is in default or breach in any material respect under (or is alleged in writing to be in default or breach in any material respect under) the terms of has provided or received any Company written notice of any intention to terminate, any such Material Contract except for such instances Contract, and (iii) no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default thereunder or breach that would not be reasonably likely to result in a termination thereof or would cause or permit the acceleration of or other changes of or to any right or obligation or the loss of any benefit thereunder, except, in each case of clauses (i) – (iii), except as would not, individually or in the aggregate, be (or reasonably be expected to be) material to the Business, taken as a whole. To the Knowledge of Sellers, neither Sellers nor any of their Controlled Affiliates have received any written notice of the intention of any party to terminate any Material Adverse Effect on Contract. Prior to the Companydate hereof, Sellers have made available to Buyer true, correct and complete copies of the Material Contracts as of the date hereof, together with all material modifications and amendments thereto.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Material Contracts. (ai) Section 5.14 Except for this Agreement and Contracts filed as exhibits to the Company Reports, as of the date hereof, none of the Company Disclosure Schedule lists each or its Subsidiaries is a party to or bound by any Contract:
(A) that limits or purports to limit, curtail or restrict, in any material respect, either the type of business in which the Company or any of its Subsidiaries (or, after giving effect to the Merger, Parent or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of sixty (60) days or less;
(B) for any joint venture, partnership, strategic alliance or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any other Person involving a potential combined commitment or payment by the Company or any of its Subsidiaries in excess of $1,000,000 in any calendar year;
(C) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing indebtedness of any Person in excess of $1,000,000 or that becomes due and payable upon, or provides a right of termination or acceleration as a result of, the consummation of the following Merger and the other Transactions;
(D) that, individually or together with related Contracts, whether written provides for any acquisition, disposition, lease, license, use, distribution or oraloutsourcing of assets, services, rights or properties with a value or requiring fees in any calendar year in excess of $1,000,000 or that is otherwise material to the business of the Company or any of its Subsidiaries;
(E) that is a collective bargaining agreement;
(F) that involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $1,000,000 in any calendar year, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of sixty (60) days or less;
(G) that includes an indemnification obligation of the Company or any of its Subsidiaries in a Contract that was entered into by the Company or its Subsidiaries outside the ordinary course of business;
(H) that provides for any standstill, most favored nation provision or equivalent preferential pricing terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject or a party or by beneficiary thereof, which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or material to the Company or any of its Subsidiaries, taken as a whole, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of more than $200,000 in sixty (60) days or less;
(I) between the aggregate Company and its Subsidiaries, on the one hand, and the Company’s Affiliates (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation Company) or other remedy underPersons, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notesother hand, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after required to be disclosed under Item 404 of Regulation S-K of the Effective Time;SEC; and
(xiJ) agreements by the Company that contains a put, call or any of its Subsidiaries not similar right pursuant to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed could be required to purchase or sell, as applicable, any liabilities or obligations equity interests of any Person or assets that have a fair market value or purchase price of more than $100,000 (other Personthan any Stock Plans or agreements entered pursuant thereto). Each such contract described in clause (i) above, in each case entered into outside together with all Contracts filed as exhibits to the ordinary course of business;Company Reports, is referred to herein as a “Material Contract.”
(xiiiii) any material Contracts with any (A) officer or director Each of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid is and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure Effective Time will continue to be 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, in accordance with its terms and is in full force and effect effect, and each of the Company and each of its Subsidiaries (to the extent they are party thereto or bound thereby) and, to the Company’s knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under each Material Contract. Each of the Company and each of its Subsidiaries is not had and would not reasonably be expected (with or without notice, lapse of time or both) in breach or default in any material respect thereunder and, to have, individually or in the aggregate, a Material Adverse Effect on knowledge of the Company, and no written notice other party to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company is (with or without notice, lapse of time or both) in breach or default in any of its Subsidiaries. Neither material respect thereunder, and neither the Company nor any of its Subsidiaries nor, to has received written notice from the Knowledge of the Company, any other party thereto is in default or breach under the terms to any Material Contract of any Company intention to cancel, terminate, change the scope of rights and obligations under or not to renew such Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (KAYAK Software Corp), Merger Agreement (Priceline Com Inc)
Material Contracts. (a) Section 5.14 Except for those agreements and other documents filed as exhibits or incorporated by reference to Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 or filed or incorporated in any of its other Company SEC Reports filed since January 1, 2010 and prior to the date hereof or as Previously Disclosed, neither Company Disclosure Schedule lists each nor any of the following Contractsits Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each, whether or not filed with the SEC, a “Material Contract”): (i) that is a “material contract” within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any other provisions that materially restricts the conduct of, or the manner of conducting, any line of business of Company or any of its affiliates (or, upon consummation of the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the payment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or its Subsidiaries in the ordinary course of business; (ix) that relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect; (x) that provides for payments to be made by Company or any of its Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $200,000 per annum (other than any such contracts which are terminable by Company or any of its Subsidiaries on 60 days or less notice without any required payment or other conditions, other than the condition of notice); (xii) that grants to a person any right in Company Owned Intellectual Property or grants to Company or any of its Subsidiaries a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software), in each case that involves the payment or more than $200,000 per annum or is material to the conduct of the businesses of the Company; (xiii) to which the Company any affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement beneficiary (each such Contract listed except with respect to loans to, or required to be so listeddeposit or asset management accounts of, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchasedirectors, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company officers and employees entered into in the ordinary course of businessbusiness and in accordance with all applicable regulatory requirements with respect to it); or (xiv) that is otherwise material to the Company or any Subsidiary of the Company or their financial condition or results of operations. Company has Previously Disclosed or made available to Purchaser prior to the date hereof true, including investment banking contracts);correct and complete copies of each Material Contract.
(i) Each Material Contract is a valid and legally binding agreement of Company or one of its Subsidiaries, as applicable, and, to the Knowledge of Company, the counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception) and is in full force and effect, (ii) any Company and each of its Subsidiaries has duly performed all material sales agencyobligations required to be performed by it prior to the date hereof under each Material Contract, sales representation, distributorship or franchise agreement;
(iii) neither Company nor any Contract or series of related Contracts involving payments by or its Subsidiaries, and, to the Knowledge of Company, any counterparty or counterparties, is in breach of any provision of any Material Contract, and (iv) no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, under any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of provide any party thereto with the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice right to terminate and no written notice of an intent to terminate, in whole or part, any such Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (West Coast Bancorp /New/Or/), Merger Agreement (Columbia Banking System Inc)
Material Contracts. (a) Section 5.14 2.11(a) of the Company Disclosure Schedule lists Letter identifies each of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement Date and, that meets the following criteria (each such Contract listed or required to be so listedeach, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future that would reasonably be expected to require payments by or to the Company or any of its Subsidiaries in excess of more than $200,000 in 1,000,000 annually after the aggregate date hereof (other than Contracts involving payments offer letters or service agreements related to the Company entered into in Company’s service providers that are terminable “at will” or for convenience without the ordinary course payment of business, including investment banking contractsseverance or notice pay or other material obligations);
(ii) any material sales agencyLease that provides for the ownership of, sales representationleasing of, distributorship title to, use of, or franchise agreementany leasehold or other interest in any real or personal property that involves aggregate payments in excess of $250,000 in any calendar year;
(iii) any Contract pursuant to which (a) the Company or series its Subsidiaries has licensed from a third-party Intellectual Property that is incorporated into the Company Products or is otherwise material to the Company and its Subsidiaries, taken as a whole, other than non-exclusive licenses to generally commercially available software or other Intellectual Property in the Ordinary Course of related Contracts involving payments by Business that have an ongoing cost of $500,000 or to less per annum, or (b) the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of grants to any Person a license, covenant not to sue, or notice to a third party in the event of or any other right with respect to Company IP and which is material to the Merger Company and its Subsidiaries, taken as a whole, other than non-exclusive licenses in order the Ordinary Course of Business to avoid a breach (x) customers incidental to the use of Company Products or termination of, a loss (y) service providers solely for the provision of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected services to have a Material Adverse Effect on the CompanyCompany and its Subsidiaries;
(iv) promissory notesany Contract for the acquisition or disposition of any Person or any business unit or assets thereof in the last five years, loansor under which the Company or Subsidiary has any continuing obligation with respect to an “earn-out”, agreements, indentures, evidences of indebtedness contingent purchase price or other instruments providing for contingent or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatedeferred payment;
(v) any Contract restricting for the payment settlement or conciliation of dividends any Proceeding or other dispute with a third party (i) the performance of which would involve any payments after the Agreement Date or (ii) that imposes any material, non-monetary obligations on the Company or any of its Subsidiaries (or the repurchase of stock or other equitySurviving Corporation after the Closing);
(vi) any collective bargaining agreementsContract that (A) contains any non-competition, exclusivity or other agreement that materially limits the ability of the Company or any its affiliates (or Parent or any of its Subsidiaries after the Closing) to compete in any line of business, in any geographic area or with any person, other than non-solicitation provisions, (B) requires or, upon the occurrence of any event or condition enumerated in the Contract would require, the disposition of any material assets or line of business of the Company or its affiliates or, after the Closing, Parent or its affiliates or (C) grants “most favored nation” status with respect to any material obligations that, after the Closing, would apply to Parent or any of its affiliates, including the Company and its Subsidiaries, and would run in favor of any Person (other than the Company and its Subsidiaries, or Parent and its Affiliates);
(vii) any material joint ventureContract that contains (A) a right of first refusal, profit sharingright of first negotiation, partnership agreements right of first offer or similar rights, or (B) put, calls or similar rights, in each case, in favor of a party other similar agreementsthan the Company or its Subsidiaries;
(viii) any Contract that creates any legal partnership, joint venture or similar entity or other similar agreement or arrangement with respect to any material business of the Company and its Subsidiaries (taken as a whole), other than Contracts or series of related Contracts relating to solely among the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)Company and/or its Subsidiaries;
(ix) all leases any Contract that is an indenture, credit agreement, loan agreement, security agreement, participation agreement, repurchase agreement, guarantee, note, mortgage, repurchase or subleases for real other agreement providing for, or personal property involving annual expense in excess guaranteeing, indebtedness of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsany of its Subsidiaries, other than Contracts solely among the Company and/or its Subsidiaries;
(x) any Contract that is an interest rate, equity or other swap or derivative instrument;
(Axi) any Contract that obligates the Company to file a registration statement under the Securities Act which filing has not yet been made;
(xii) any Contract that limits in any material respect or restricts the freedom ability of the Company or any of its Subsidiaries to engage declare or compete pay dividends or make distributions in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any respect of their respective Affiliates after the Effective Time capital stock, partner interests, membership interests or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessequity interests;
(xiii) any material Contracts with Contract providing for indemnification of any (A) officer or director of (A) the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more any of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and’s Subsidiaries;
(xiv) any other confidentiality agreement or standstill agreement the Company has entered into with any third party (or any agent thereof) containing any exclusivity or standstill provisions that are or will be binding on the Company, any of its affiliates or, after the Closing, Parent or any of its affiliates; or
(xv) any Contract that would be required to be filed by the Company as a material contract pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect Effect, and subject, as to enforceability, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, and general equitable principles, (i) each Company Material Contract is valid and binding on the Company or the applicable Subsidiary of the Company, as applicable, and no written notice is in full force and effect, except to terminate the extent it has previously expired in accordance with its terms, (ii) the Company and no written notice each of an intent its Subsidiaries have performed all obligations required to terminate, in whole or part, any be performed by it to date under each such Company Material Contract has been received by and (iii) no event or condition exists that constitutes or, after notice or lapse of time or both, will constitute, a breach or a default on the part of the Company or any of its SubsidiariesSubsidiaries under any such Company Material Contract or give any other party to any such Company Material Contract the right to terminate or cancel such Company Material Contract. Neither A copy of each Company Material Contract has previously been made available to Parent.
(c) As of the Agreement Date, to the knowledge of the Company, there has not been, nor has the Company nor or any of its Subsidiaries nor, to the Knowledge of the Companyreceived notice of, any other party thereto is in default or breach under the terms violation of any Company Material Contract except for such instances by any of default the other parties thereto that would, individually or breach that would not in the aggregate, reasonably be reasonably likely expected to result in have a Company Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Merger Agreement (Rocket Companies, Inc.), Merger Agreement (Redfin Corp)
Material Contracts. (a) Section 5.14 5.19 of the Company Disclosure Schedule Letter lists each of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries is a party or is otherwise bound by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedContract, a “Company Material Contract”):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any Contract containing covenants binding upon the Company or series any Subsidiary of related Contracts the Company that (A) materially restricts the ability of the Company or any Subsidiary of the Company (or which, following the consummation of the Offer or the Merger, could materially restrict the ability of the Surviving Corporation) to compete (1) in any business that is material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, (2) with any person or (3) in any geographic area or (B) could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries, in each case except for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments any such Contract that may be cancelled without penalty by or to the Company or any of its Subsidiaries upon notice of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship 60 days or franchise agreementless;
(iii) any Contract with respect to a joint venture, partnership or series similar arrangement;
(iv) any Contract (other than vendor Contracts for the purchase of related Contracts involving payments by or merchandise for resale) pursuant to which the Company or any of its Subsidiaries made or received payments of more than $50,000 in 25 million during the aggregate that requires consent of or notice to a third party in the event of or with respect 12-month period prior to the Merger in order date hereof, with material payment obligations remaining to avoid a breach or termination of, a loss be performed by the Company after the date of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatethis Agreement;
(v) any Contract restricting (A) that is a “requirements” Contract entered into with a vendor for the payment purchase of dividends merchandise for resale or (B) under which the repurchase consummation of stock the Transactions would give rise to a third party having a right of termination, amendment, acceleration or other equitycancellation thereunder;
(vi) any collective bargaining agreements;
(vii) loan, credit, security or pledge agreement, debenture or similar Contract pursuant to which any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom indebtedness of the Company or any of its Subsidiaries for borrowed money (other than ordinary course trade payables);
(vii) any Contract relating to engage guarantees or compete in assumptions of obligations of any line of business or with third Person;
(viii) any Person or in any area or Contract pursuant to which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries disposed of or that would be binding on Parent acquired, or its Affiliates after the Effective Time;
(xi) agreements agreed to dispose of or acquire, a material business or, any amount of material assets by the Company or any of its Subsidiaries not Subsidiaries, with material obligations remaining to acquire assets be performed or securities material liabilities continuing after the date of a third party this Agreement, including, without limitation, any “earn out” or other contingent payment obligations, or any indemnification obligations;
(including standstill agreementsix) any material hedge, collar, option, forward purchasing, swap, derivative or agreements by a third party not to acquire assets similar Contract;
(x) any Contract with any director, officer, employee, consultant or securities Affiliate of the Company or any of its Subsidiaries (including standstill agreementsother than any Company Benefit Plan), in each case entered into outside the ordinary course of business;
(xi) any material Contract with any Governmental Entity;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a Person which requires aggregate future payments equal to or in excess of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business$5 million;
(xiii) any material Contracts with Contract for capital expenditures or the acquisition or construction of fixed assets which requires future payments in excess of $10 million;
(xiv) any Contract pursuant to which the Company or any Subsidiary of the Company (A) officer is granted or director obtains any right to use any material Intellectual Property Rights (other than Contracts granting rights to use commercial-off-the-shelf Software), (B) is restricted in its right to use or register any material Company Owned Intellectual Property Rights or (C) permits any other Person to use, enforce or register any material Company Owned Intellectual Property Rights, including any license agreements, coexistence agreements, and covenants not to ▇▇▇, other than Contracts with suppliers, manufacturers, distributors and other service providers entered into in the ordinary course of business consistent with past practice; and
(xv) any amendment, supplement or modification of a Contract described in clauses (i) through (xiv) or any binding commitment or binding agreement to enter into any of such Contract.
(i) Each Company Material Contract is valid and binding on the Company and is in full force and effect, and, to the Knowledge of the Company, is valid and binding on the other parties thereto (in each case subject to the Bankruptcy and Equity Exception), (ii) each of the Company and its Subsidiaries has in all material respects performed all obligations required to be performed by it under each Company Material Contract and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder)Contract. All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to To the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice other party to terminate and no written notice of an intent to terminate, in whole or part, any Company Material Contract has been received is in material breach or default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a material breach or default by the Company or any of its Subsidiariessuch other party thereunder. Neither the Company nor any of its Subsidiaries norhas received any written notice, or to the Knowledge of the Company, oral notice, of termination or cancellation under any other Company Material Contract, received any notice of material breach or default under any Company Material Contract that has not been cured, or granted to any third party thereto is in default any rights, adverse or otherwise, that would constitute a material breach under the terms of any Company Material Contract except for such instances Contract. The Company has furnished or otherwise made available to Parent true and correct copies of default or breach that would not be reasonably likely to result all Company Material Contracts in a Material Adverse Effect on effect as of the Companydate of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
Material Contracts. (a) Except for Contracts that are filed as an exhibit to a Company SEC Report, Section 5.14 5.18(a) of the Company Disclosure Schedule lists each Letter contains an accurate and complete list of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries the Company Subsidiary is a party or by which it is bound as of the date of this Agreement hereof (each such Contract listed Contract, whether or required to be so listednot set forth in such section of the Company Disclosure Letter, a “Company Material Contract”):
(i) each Contract (A) relating to the employment of, or the performance of services by, any director, officer, employee or individual Contractor, requiring or otherwise involving the payment by the Company or the Company Subsidiary in excess of $250,000 in the fiscal year ended December 31, 2012, (B) the terms of which obligate or may in the future obligate the Company or the Company Subsidiary to make any severance, termination or similar payment to any current or former employee in excess of $250,000, or (C) pursuant to which the Company or the Company Subsidiary may be obligated to make any bonus or similar payment to any current or former employee or director in excess of $250,000;
(ii) each Contract (A) materially limiting the freedom or series right of related Contracts for the purchaseCompany or the Company Subsidiary (or, receiptafter the Acceptance Time, lease Parent or any of its Affiliates) to engage in any line of business, including the research, development and commercialization of the Company Products, to make use of materialsany material Company Intellectual Property or to compete with any other Person in any location or line of business, supplies(B) containing any “most favored nations” terms and conditions (including with respect to pricing) or exclusivity obligations, goods(C) granting any right of first refusal, servicesright of first offer or similar right or (D) containing any other term, equipment condition or other clause that, individually or in the aggregate, limits or purports to limit in any material respect the ability of the Company or the Company Subsidiary to own, operate, manufacture, sell, distribute, transfer, pledge or otherwise dispose of any material assets or business of the Company or the Company Subsidiary (or, after the Acceptance Time, Parent or its Affiliates);
(iii) each Related Party Transaction;
(iv) each Contract that provides for indemnification (or reimbursement or advancement of legal fees or expenses) of any current or former officer, director or employee of the Company or the Company Subsidiary;
(v) each Lease under which the Company or the Company Subsidiary leases, subleases or licenses any real property;
(vi) each Contract requiring or otherwise involving future payments the potential payment by or to the Company or any of its Subsidiaries the Company Subsidiary of more than (A) $200,000 500,000 in any fiscal year or (B) $1,000,000 in the aggregate (other than Contracts involving payments to the Company entered into aggregate, in the ordinary course of businesseach case, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments except for those that are terminable by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of Company Subsidiary, without cost or notice to a third party in the event of penalty, on 90 days’ or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreementsless notice;
(vii) each Contract (A) in which the Company or the Company Subsidiary have agreed to purchase a minimum quantity of goods relating to any material joint venture, profit sharing, partnership agreements product or product candidate or (B) pursuant to which the Company or the Company Subsidiary has continuing obligations or interests involving the payment of royalties or other similar agreementsamounts calculated based upon the revenues or income of the Company or the Company Subsidiary, in each case, except for those that are terminable by the Company or the Company Subsidiary, without cost or penalty, on 90 days’ or less notice;
(viii) each Contract for the disposition of any Contracts significant portion of the assets or series business of related Contracts relating to the acquisition Company or disposition the Company Subsidiary or any agreement for the acquisition, directly or indirectly, of a material amount portion of the assets outside the ordinary course or business of business any other Person (in each case, whether by merger, sale of stock, sale of stock or assets or otherwise);
(ix) all leases each Contract creating or subleases for real governing any joint venture, partnership, strategic alliance, collaboration or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six monthssimilar arrangement;
(x) each Contract pursuant to which the Company or the Company Subsidiary has been granted by any Contract that (A) limits Person any license to any Intellectual Property, or any other option, covenant not to ▇▇▇, non-assertion protection, freedom from suit, release, or settlement in respect of Intellectual Property, in each case if material with respect to any material respect the freedom of the Company or Products (provided that the foregoing does not include any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions licenses for off-the-shelf personal computer software that are binding commercially available under non-discriminatory pricing terms on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timea retail basis);
(xi) agreements each Contract that relates to the supply or manufacturing of any Company Product requiring or otherwise involving the potential payment by or to the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company Subsidiary of more than (A) $100,000 in any fiscal year or any of its Subsidiaries (including standstill agreements)B) $500,000 in the aggregate, in each case entered into outside the ordinary course of businessexcept for those relating exclusively to routine office and scientific supplies;
(xii) each Contract (other than trade debt incurred in the ordinary course of business consistent with past practice) related to (A) borrowed money and any guarantees thereof or (B) the granting of material Contract providing for Liens over the indemnification by property or assets of the Company or any of its Subsidiaries of any Person or the Company Subsidiary;
(xiii) each Contract under which the Company or the Company Subsidiary have, directly or indirectly, made any advance, loan, extension of its Subsidiaries has guaranteed credit or capital contribution to, or other investment in, any liabilities or obligations of any Person other Personthan the Company Subsidiary, in each case in an amount in excess of $500,000;
(xiv) each Contract containing a standstill or similar obligation (which remains in effect) pursuant to which any Affiliate of the Company may be prohibited or otherwise restricted from acquiring assets or securities of another party or any of its Affiliates;
(xv) each Contract under which the Company or the Company Subsidiary has expressly agreed to indemnify any Person against any claim of infringement, misappropriation, or violation of the Intellectual Property rights of a third person arising from the practice of Company Intellectual Property, other than Contracts entered into outside in the ordinary course of businessbusiness consistent with past practice;
(xiiixvi) any material Contracts with any (A) officer each Contract that would prohibit or director materially delay the consummation of the Transactions or otherwise materially impair the ability of the Company or to perform its obligations hereunder; and
(xvii) any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate “material contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of under the SECSecurities Act).
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 Each of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesis valid, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect and is enforceable in accordance with its terms by the Company and the Company Subsidiary party thereto, subject to the Bankruptcy and Equity Exception. Neither the Company nor the Company Subsidiary is in material default under any Material Contract, nor, to the knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder by the Company and the Company Subsidiary party thereto. To the knowledge of the Company, no other party to any Material Contract is in material default thereunder, nor does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder of such other party. Neither the Company nor the Company Subsidiary has received any written notice of termination or cancellation under any Material Contract or received any written notice of breach or default under any Material Contract, which breach or default has not had and been cured, except for such terminations, cancellations, breaches or defaults that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company, Effect. The Company has made available to Parent or its Representatives accurate and no written notice to terminate and no written notice complete copies of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge all of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContracts.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
Material Contracts. (a) Section 5.14 of the The Company Disclosure Schedule lists each of sets forth the following Contractscontracts, whether undertakings, commitments, licenses or agreements, written or oral, to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which it is bound as are applicable to any of their respective assets or properties (true and complete copies (or written summaries, if oral) of which have been made available to Parent prior to the date of this Agreement hereof) other than those contracts or agreements listed as exhibits in the Company’s Form 10-K for the fiscal year ended December 28, 2008 (each such Contract contract or agreement as is required to be set forth in the Company Disclosure Schedule, together with all contracts and agreements of the Company or any Company Subsidiary listed or required to be so listedlisted as exhibits in the Company’s Form 10-K for the fiscal year ended December 28, 2008, being a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, loan agreements, indentures, evidences of indebtedness or other instruments and contracts providing for the borrowing or relating to the lending of money, whether as borrower, lender or guarantor, and any agreements or instruments pursuant to which any cash of the Company or any Company Subsidiary is held in amounts greater escrow or its use by the Company or any Company Subsidiary is otherwise restricted, in each case in an amount of more than $25,000 in 1,000,000;
(ii) all contracts involving a value of more than $1,000,000 pursuant to which any material property or assets of the aggregateCompany or any Company Subsidiary is subject to a Lien;
(iii) joint venture, alliance, affiliation or partnership agreements or joint development or similar agreements pursuant to which any third party is entitled to develop or market any products or services on behalf of, or together with, the Company or any Company Subsidiary or receive referrals of business from, or provide referrals of business to, the Company or any Company Subsidiary;
(iv) executory contracts for the acquisition or sale, directly or indirectly (by merger or otherwise) of all or a substantial portion of the assets (whether tangible or intangible) or the Equity Interests of another Person, including, without limitation, contracts for any completed acquisitions or sales pursuant to which an “earn out” or similar form of obligation (whether absolute or contingent) is pending or for which there are any continuing indemnification or similar obligations;
(v) any Contract restricting the payment of dividends interest rate or the repurchase of stock currency swaps, caps, floors or option agreements or any other equityinterest rate or currency risk management arrangement or foreign exchange contracts;
(vi) any collective bargaining agreementsall licenses, sublicenses, or consent, royalty or other agreements concerning Company Intellectual Property involving an amount of more than $200,000;
(vii) any material joint venture, profit sharing, partnership agreements contracts relating to rights to indemnification and/or advancement of expenses as in effect on the date hereof with respect to matters occurring on or other similar agreementsprior to the Effective Time (including the transactions contemplated hereby);
(viii) any Contracts contract, agreement or series other instrument of related Contracts relating understanding which is not terminable by the Company or a Company Subsidiary without additional payment or penalty within sixty (60) days and obligates the Company or any Company Subsidiary for payments or other consideration with a value of more than $1,000,000;
(ix) contracts of the type required under Section 3.5(b) or Section 3.12(h) to be disclosed on the acquisition Company Disclosure Schedule;
(x) contracts imposing any material restriction on the right or disposition ability of the Company or a Company Subsidiary (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, (C) to solicit, hire or retain any Person as an employee, consultant or independent contractor, (D) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person or contracts granting to any Person (other than the Company or any wholly owned Company Subsidiary) any “most favored nation” clause as to price or any other material amount of assets outside term;
(xi) contracts (i) imposing any confidentiality obligation on the Company or any Company Subsidiary (other than routine confidentiality or nondisclosure agreements entered into in the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixthat do not otherwise constitute Material Contracts under this Section 3.17) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (Bii) contains any material exclusivity, containing “most favored nation”, rights of first refusal, rights of first negotiation standstill” or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessprovisions;
(xii) any contracts that could reasonably be expected to have a material Contract providing for effect on (i) the indemnification by business, condition, capitalization, assets, liabilities, operations or financial performance of the Company or (ii) the ability of the Company to perform any of its Subsidiaries of any Person obligations under, or under which the Company or to consummate any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;transactions contemplated by this Agreement; and
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30contract, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate if a Default (as defined below) under such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required contract would be reasonably likely to be filed by the have a Company pursuant to Item 601(a)(10) of Regulation S-K of the SECMaterial Adverse Effect.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect effect, and is enforceable in accordance with its terms, subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies.
(c) Neither the Company nor any Company Subsidiary is, or has received any notice that any other party is, in breach, default or violation of or is unable to perform in any respect under (each, a “Default”) any Material Contract (and no event has occurred or not had and occurred through the Company’s or any Company Subsidiary’s action or inaction or, to the knowledge of the Company, through the action or inaction of any third party, which with notice or the lapse of time or both would constitute or give rise to a Default), except for those Defaults which would not be reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its SubsidiariesEffect. Neither the Company nor any of its Subsidiaries nor, to the Knowledge Company Subsidiary has received written notice of the Companytermination of, or intention to terminate, any other party thereto is in default or breach under the terms of any Company Material Contract Contract, except for such instances of default notices or breach terminations that would not be reasonably likely to result have, individually or in the aggregate, a Company Material Adverse Effect on Effect. Except as set forth in the Company Disclosure Schedule, no Claims for indemnification under any agreement have been made by or against the Company or any Company Subsidiary since January 1, 2006 and there are no such Claims outstanding or, to the knowledge of the Company, threatened.
Appears in 2 contracts
Sources: Merger Agreement (Comsys It Partners Inc), Merger Agreement (Manpower Inc /Wi/)
Material Contracts. (a) Section 5.14 Schedule 5.12(a) sets forth a list of the Company Disclosure Schedule lists each of the following Contracts (each, a “Material Contract” and, collectively, the “Material Contracts, whether written or oral, ”) to which the Company or any of its Subsidiaries is a party or by which it any of them is bound as of the date of this Agreement (each such excluding any Contract listed which constitutes a Lease or required to be so listed, a “Company Material Contract”):Benefit Plan) and which:
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or (x) involves aggregate consideration payable to the Company or any of its Subsidiaries in excess of $750,000 per year, (y) involves aggregate consideration payable by the Company or any of its Subsidiaries in excess of $750,000 per year or (z) requires performance by any party more than $200,000 one year from the date hereof, which, in the aggregate (other than Contracts involving payments to each case, cannot be cancelled by the Company entered into in or the ordinary course of business, including investment banking contracts)applicable Subsidiary without material penalty upon less than one hundred eighty (180) days’ notice;
(ii) relates to the sale of the Company’s or any of its Subsidiaries’ material assets, other than sales in the Ordinary Course of Business, having a fair market value in excess of $500,000, and which contains any material sales agencyoutstanding obligations of the Company or any of its Subsidiaries with respect to an “earn out,” contingent purchase price, sales representation, distributorship or franchise agreementsimilar contingent payment obligation or material indemnification obligation;
(iii) any Contract or series of related Contracts involving payments relates to the acquisition by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofany business, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of stock or assets outside the ordinary course of business any other Person (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense having a fair market value in excess of $1,000 500,000, and not cancelable which contains any material outstanding obligations of the Company or any of its Subsidiaries with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or material indemnification obligation;
(iv) relates to Indebtedness incurred or provided by the Company (without premium or penalty) within six monthsany of its Subsidiaries, including any hedging contracts;
(xv) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries or their respective Affiliates (or, after the Closing, Parent and its Affiliates) to engage or compete in any line of business business, acquire any entity or compete with any Person or in any area market or which would so limit the freedom of Parentgeographical area, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation exclusivity obligations or similar obligations or restrictions that are binding on and material to the Company or any of its Subsidiaries or any of their respective Affiliates (or, after the Closing, Parent and its Affiliates) or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Affiliates (or, after the Closing, Parent and its Affiliates), (C) grants a most-favored nation status to any Person, in a manner that is, or would reasonably be expected to be, material to the Company and its Subsidiaries not to acquire assets or securities of a third party (including standstill agreementsD) or agreements by a third party not to acquire assets or securities otherwise materially restricts the ability of the Company or any of its Subsidiaries (including standstill agreements)or, in each case entered into outside after the ordinary course of businessClosing, Parent and its Affiliates) to solicit or hire any person or solicit business from any Person;
(xiivi) constitutes a partnership or joint venture agreement or teaming agreement or other similar agreement involving a sharing of profits, losses, costs or liabilities of the Company or any of its Subsidiaries with any other Person;
(vii) involves any resolution or settlement of any actual or threatened Proceeding against or involving the Company or any of its Subsidiaries since January 31, 2017, and involving aggregate payments in excess of $250,000 or other material Contract providing for the indemnification requirements;
(viii) requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount that, individually or in the aggregate, is greater than $500,000, excluding capital equipment ordered in the Ordinary Course of Business in accordance with the Company’s business plan;
(ix) contains any Person standstill or under similar agreement pursuant to which the Company or any of its Subsidiaries has guaranteed any liabilities agreed not to acquire assets or obligations securities of any other another Person, in each case entered into outside which would be binding on Parent and its Affiliates after the ordinary course of businessClosing;
(xiiix) any material Contracts except as set forth on Schedule 5.13(a), constitutes an employment agreement with any (A) an executive officer or director of the Company or provides for severance, retention, change of control or other similar payments to any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and or its SubsidiariesSubsidiaries in excess of $200,000;
(xi) for the twelve-month periods ended November 30, 2009 and 2010constitutes a Company IP Agreement; or
(Bxii) record or beneficial owner of five percent or more constitutes a commitment to do any of the voting securities of Company; or foregoing described in clauses (Ci) affiliate through (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECxi).
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listedExcept as set forth in Schedule 5.12(b), or required to be listed, in Section 5.14 (i) none of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and or its Subsidiaries, and applicable Subsidiary that is party to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyContract, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto to such Material Contract, is in material breach or material default under such Material Contract, and (ii) neither the Company nor any of its Subsidiaries has received (x) any written notice of any default or breach event that, with or without notice or the lapse of time, or both, would constitute a default by the Company or its applicable Subsidiary that is party thereto under the terms of any Company Material Contract Contract, except for such instances of default defaults that, individually or breach that in the aggregate, have not had or would not reasonably be reasonably likely expected to result in have a Material Adverse Effect on Effect, or (y) any written notice of termination or cancellation of any Material Contract. The Company has made available to Parent true and complete copies of all Material Contracts.
(c) Except as set forth in Schedule 5.12(c), each Material Contract is in full force and effect, is a valid and binding obligation of the Company or its applicable Subsidiary that is party thereto, and to the Knowledge of the Company, each other party thereto, and is enforceable in all material respects in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(d) The Company shall have until the end of the sixth (6th) Business Day following the date hereof to deliver to Parent an amended version of Schedule 5.12(a), with effect as of the execution of this Agreement. Such amended Schedule 5.12(a) shall for all purposes of this Agreement constitute the disclosures of the Company against Section 5.12(a) as if the disclosures in such amended Schedule 5.12(a) were made as of the execution of this Agreement. The delivery of an amended Schedule 5.12(a) shall in no event have the effect of or be construed as affecting the timing of any representation or warranty made by the Company.
Appears in 2 contracts
Sources: Merger Agreement (BakerCorp International, Inc.), Merger Agreement (United Rentals North America Inc)
Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as As of the date of this Agreement (each such Contract listed hereof, the Company is not a party to or required to be so listed, a “Company Material Contract”):bound by:
(i) any Contract lease of or series other occupancy arrangement regarding real property;
(ii) any lease of related Contracts personal property providing for annual payments by the Company of $10,000 or more and which is not cancelable or terminable without penalty with notice of 60 or less days;
(iii) any agreement for the purchasepurchase or license of materials, receiptsupplies, lease goods, services, equipment or use other tangible or intangible assets that provides for (or would reasonably be expected to result in) either annual payments by the Company of $25,000 or more or aggregate payments by the Company of $50,000 or more;
(iv) any sales, rental, distribution or other similar agreement providing for the sale, rental or distribution by the Company of materials, supplies, goods, services, equipment or other assets involving future payments by that expressly provides for (or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(ivresult in) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating either annual payments to the lending Company of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in or more or aggregate payments to the aggregateCompany of $50,000 or more;
(v) any Contract restricting the payment of dividends or the repurchase of stock partnership, joint venture or other equitysimilar agreement or arrangement;
(vi) any collective bargaining agreements;
(vii) any material joint ventureagreement, profit sharing, partnership agreements contract or other similar agreements;
(viii) any Contracts or series of related Contracts commitment relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(vii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(viii) any alliance, agency, dealer, sales representative, marketing or other similar agreement;
(ix) all leases any consulting, services, development or subleases collaboration agreement or other agreement for real or personal property involving annual expense in excess development of $1,000 products and not cancelable by services for the Company (without premium or penalty) within six monthsCompany;
(x) any Contract agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parentthe Surviving Corporation, the Company Parent or any of their respective Parent’s Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xi) agreements any agreement providing for indemnification by the Company Company, or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities in favor of the Company or any of its Subsidiaries (including standstill agreements)Company, other than indemnification provisions arising in each case entered into outside the ordinary course of businessbusiness and consistent with past practices, including without limitation in purchase orders, customer agreements or indemnities of lessors (other than any Affiliate) under any leases;
(xii) any material Contract agreement containing a “most favored nation” or similar provision or providing for the indemnification by the Company minimum purchase or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businesssale obligations;
(xiii) any material Contracts agreement with any (A) officer or director Affiliate of the Company Company, any director or officer of the Company, or any of its Subsidiaries (“associate” or any other employee who is one member of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇1▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andofficer;
(xiv) any other Contract required to be filed by the agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered Securities or Made Available to Parent complete and accurate copies of each Company Material Contract listeddebt instruments, or required to be listedany undertaking, in Section 5.14 promise or other obligation, written or oral, of the Company Disclosure Schedule (including all amendmentsto issue any Company Securities, modifications, extensions and renewals thereto and waivers thereunder). All the value of any of the Company Material Contracts are valid and binding obligations benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xv) any agreement with or among the Members, including any agreement that provides for preemptive rights or imposes any limitation or restriction on Company and its SubsidiariesSecurities, and including any restriction on the right of a Member to the Knowledge vote, sell or otherwise dispose of the such Company are binding obligations of the Securities; or
(xvi) any other parties theretoagreement, and are in full force and effect (except those which are cancelledcommitment, rescinded arrangement or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has plan not had and would not reasonably be expected to have, individually or made in the aggregate, a Material Adverse Effect on the Company, and no written notice ordinary course of business that is material to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.
Appears in 2 contracts
Sources: Merger Agreement (Callidus Software Inc), Merger Agreement (Callidus Software Inc)
Material Contracts. (a) Section 5.14 3.20(a) of the Company Disclosure Schedule lists each of the following ContractsLetter sets forth, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedAgreement, a “correct and complete list of each of the following types of Contracts to which the Company, any Company Material Contract”):Sharing Company (to the extent applicable) or any of their respective Subsidiaries is a party, or by which any of their respective properties or assets is bound:
(i) each Contract that, (A) limits or restricts the Company, any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company Sharing Company or any of its their Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete from competing in any line of business or with any Person or in any area geographic region, (B) contains exclusivity obligations or which would so limit restrictions binding on the freedom of ParentCompany, the any Company Sharing Company or any of their respective Affiliates after Subsidiaries, (C) requires the Effective Time or (B) contains Company, any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Sharing Company or any of their respective Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (D) provides for rights of first refusal or offer or any similar requirement or right in favor of any third party in respect of a Minority Investment Entity, in each case, that is material to the Company and its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries, taken as a whole;
(xiii) agreements by each Contract that is a joint venture, partnership, limited liability company or similar agreement that is material to the Company or any of and its Subsidiaries not to acquire assets or securities of Subsidiaries, taken as a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businesswhole;
(xiiiii) any material each Contract providing for the indemnification by that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company or any and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business$10 million individually;
(xiiiiv) any material Contracts each Contract with any respect to an interest, rate, currency or other swap or derivative transaction (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of than those between the Company and its Subsidiaries) with a fair value in excess of $5 million;
(v) each Contract that is an acquisition agreement or a divestiture agreement or agreement for the twelve-month periods ended November 30sale, 2009 and 2010; (B) record lease or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members license of any business or properties or assets of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company (by merger, purchase or sale of assets or stock) entered into since December 31, 2014 or pursuant to Item 601(a)(10which (A) of Regulation S-K of the SEC.
(b) The Company has prior any outstanding obligation to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated pay after the date of this Agreement consideration in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice excess of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.$5 million or
Appears in 2 contracts
Sources: Merger Agreement, Agreement and Plan of Merger
Material Contracts. (a) Section 5.14 5.14(a) of the Company Disclosure Schedule Letter lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts (other than the Employee Plans) for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 100,000 on an annual basis or $250,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)aggregate;
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts (other than any Contract with respect to Leased Real Property) involving payments by or to the Company or any of its Subsidiaries of more than $50,000 100,000 on an annual basis or $250,000 in the aggregate that requires the consent of or notice to a third party in the event of or with respect to the Offer, the Merger or the other transactions contemplated hereby, including in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing any Contract for or relating to the lending of moneyIndebtedness, whether as borrower, lender or guarantor, in amounts a principal amount greater than $25,000 in the aggregate50,000;
(v) any Contract restricting the payment of dividends on Company Capital Stock or the repurchase of stock or other equityCompany Capital Stock by the Company;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount any business or of all or substantially all the securities or assets outside the ordinary course of business any Person (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) any Contract with a Governmental Authority;
(x) all leases or subleases for real or personal property involving annual expense in excess of $1,000 50,000 and not cancelable by the Company (without premium or penalty) within six 12 months (each, a “Material Real Property Lease”);
(xi) all leases or subleases for personal property involving annual expense in excess of $100,000 and not cancelable by the Company (without premium or penalty) within 12 months;
(xxii) all Contracts granting any license to Intellectual Property (other than trade and service marks by the Company or any of its Subsidiaries) having an aggregate value per license, or involving payments to the Company or any of its Subsidiaries, of more than $100,000 on an annual basis;
(xiii) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, ,” “rights of first refusal, ,” “rights of first negotiation negotiation” or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xixiv) all agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiixv) any material Contract (including Material Real Property Leases, but excluding other Real Property Leases) providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, other than in each case entered into outside the ordinary course of business;
(xiiixvi) any material Contracts (other than the Employee Plans) or other transactions (other than the Employee Plans) with any (A) executive officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; , or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xivxvii) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC.SEC or disclosed by the Company on a Current Report on Form 8-K.
(b) The Company has prior to the date of this Agreement delivered or Made Available made available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 5.14(a) of the Company Disclosure Schedule Letter (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All Each of the Company Material Contracts are is valid and binding obligations of on the Company and or its Subsidiaries, as applicable, and to the Knowledge knowledge of the Company are binding obligations of the Company, each other parties party thereto, and are in full force and effect in accordance with its terms (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their termsterms and subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract of the same has been received by served (nor has there been any indication in writing delivered to the Company or that any such notice of its Subsidiariestermination will be served). Neither the Company nor any of its Subsidiaries nor, to the Knowledge knowledge of the Company, any other party thereto to any Company Material Contract is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result have, individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 2 contracts
Sources: Merger Agreement (Ixia), Merger Agreement (Catapult Communications Corp)
Material Contracts. (a) Section 5.14 Except for those agreements and other documents filed as exhibits or incorporated by reference to Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 or filed or incorporated in any of its other Company SEC Reports filed since March 16, 2012 and prior to the date hereof or as Previously Disclosed, neither Company Disclosure Schedule lists each nor any of the following Contractsits Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each, whether or not filed with the SEC, a “Material Contract”): (i) that is a “material contract” within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any other provisions that restricts the conduct of, or the manner of conducting, any line of business of Company or any of its affiliates (or, upon consummation of the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the payment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or its Subsidiaries in the ordinary course of business; (ix) that relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect; (x) that provides for payments to be made by Company or any of its Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $200,000 per annum (other than any such contracts which are terminable by Company or any of its Subsidiaries on 60 days or less notice without any required payment or other conditions, other than the condition of notice); (xii) that grants to a person any right in Company Owned Intellectual Property or grants to Company or any of its Subsidiaries a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software), in each case that involves the payment or more than $200,000 per annum or is material to the conduct of the businesses of the Company; (xiii) to which the Company any affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement beneficiary (each such Contract listed except with respect to loans to, or required to be so listeddeposit or asset management accounts of, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchasedirectors, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company officers and employees entered into in the ordinary course of businessbusiness and in accordance with all applicable regulatory requirements with respect to it); or (xiv) that is otherwise material to the Company or any Significant Subsidiary of the Company or their financial condition or results of operations. Company has Previously Disclosed or made available to Purchaser prior to the date hereof true, including investment banking contracts);correct and complete copies of each Material Contract.
(i) Each Material Contract is a valid and legally binding agreement of Company or one of its Subsidiaries, as applicable, and, to the Knowledge of Company, the counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception) and is in full force and effect, (ii) any Company and each of its Subsidiaries has duly performed all material sales agencyobligations required to be performed by it prior to the date hereof under each Material Contract, sales representation, distributorship or franchise agreement;
(iii) neither Company nor any Contract or series of related Contracts involving payments by or its Subsidiaries, and, to the Knowledge of Company, any counterparty or counterparties, is in breach of any provision of any Material Contract, and (iv) no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, under any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of provide any party thereto with the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice right to terminate and no written notice of an intent to terminate, in whole or part, any such Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (Hilltop Holdings Inc.), Merger Agreement (Plainscapital Corp)
Material Contracts. (a) Section 5.14 As of the Company Disclosure Schedule lists each date hereof, none of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease (whether of real or series personal property) providing for annual rentals of related Contracts $100,000 or more;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either (A) annual payments by the Company and its Subsidiaries of $100,000 or more or (B) aggregate payments by the Company and its Subsidiaries of $250,000 or more;
(iii) any license, sales, rental, distribution or other similar agreement providing for the license, sale, rental or distribution by the Company or any of its Subsidiaries of technology, materials, supplies, goods, services, equipment or other assets that expressly provides for (or would reasonably be expected to result in) either annual payments to the Company or any of its Subsidiaries of $100,000 or more than $200,000 in the or aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in 250,000 or more;
(iv) any agreement for the aggregate that requires consent purchase or license of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination oftechnology, a loss of benefit undermaterials, or triggering a price adjustmentsupplies, right of renegotiation goods, services, equipment or other remedy under, any such agreement, in each case tangible or intangible assets that provides for (or would reasonably be expected to have a Material Adverse Effect on result in) either annual payments by the Company;
(iv) promissory notes, loans, agreements, indentures, evidences Company or any of indebtedness its Subsidiaries of $100,000 or other instruments providing for more or relating to aggregate payments by the lending Company or any of money, whether as borrower, lender its Subsidiaries of $250,000 or guarantor, in amounts greater than $25,000 in the aggregatemore;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixvi) all leases any agreement relating to indebtedness for borrowed money or subleases for real the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or personal property involving annual expense in excess secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than 30 days’ notice without the payment of $1,000 and not cancelable by the Company (without premium or any penalty) within six months;
(xvii) any Contract agency, dealer, sales representative, marketing or other similar agreement;
(viii) any consulting, services, development or collaboration agreement or other agreement for development, commercialization, marketing or sales of products and services for the Company or any of its Subsidiaries, including joint ventures;
(ix) any agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parentthe Surviving Corporation, the Company Parent or any of their respective Parent’s Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiix) any material Contract agreement providing for the indemnification by the Company or any of its Subsidiaries of any Person Subsidiaries, or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director favor of the Company or any of its Subsidiaries Subsidiaries, other than indemnification provisions arising in the ordinary course of business and consistent with past practices, including without limitation in purchase orders, customer agreements or indemnities of lessors (other than any Affiliate) under any leases;
(xi) any material agreement containing a “most favored nation” or similar provision or providing for minimum purchase or sale obligations;
(xii) any agreement with (A) any Stockholder or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30Affiliates, 2009 and 2010; (B) record any Person directly or beneficial owner of five percent indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of Company; any Stockholder or any of its Affiliates, (C) affiliate any Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by any Stockholder or any of its Affiliates or (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇D) any director or officer of any Stockholder or any of its Affiliates or any “associates” (or members of any of their the “immediate family”) ” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andofficer;
(xiii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, Company Securities or debt instruments, or any undertaking, promise or other obligation, written or oral, of the Company or any of its Subsidiaries to issue any Company Securities or Company Subsidiary Securities;
(xiv) any other Contract required shareholders agreement or similar agreement with or among the Stockholders, including any agreement that provides for preemptive rights or imposes any limitation or restriction on Company Stock, including any restriction on the right of a Stockholder to be filed by the vote, sell or otherwise dispose of such Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.Stock; or
(bxv) The Company has prior any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, taken as a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companywhole.
Appears in 2 contracts
Sources: Merger Agreement (Formfactor Inc), Merger Agreement (Formfactor Inc)
Material Contracts. (a) Except for this Agreement, the Ensco Benefit Plans, agreements with customers for the provision of drilling and related services, agreements filed as exhibits to the Ensco SEC Documents or as set forth on the applicable subsection of Section 5.14 4.19(a) of the Company Ensco Disclosure Schedule lists each Schedule, as of the following Contractsdate hereof, whether written or oral, to which the Company or neither Ensco nor any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any Contract that (A) imposes any restriction on the right or series ability of related Contracts Ensco or any of its Subsidiaries to compete with any other person or in any geographic area or acquire or dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of Ensco and its Subsidiaries in a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of Ensco or any of its Subsidiaries in an amount in excess of $50.0 million, except any transaction among Ensco and its wholly owned Subsidiaries or among Ensco’s wholly owned Subsidiaries;
(iv) any executory Contract that provides for the purchaseacquisition or disposition of assets, receiptrights or properties with a value in excess of $50.0 million, lease except any transaction among Ensco and its wholly owned Subsidiaries or use of materialsamong Ensco’s wholly owned Subsidiaries;
(v) any material joint venture, supplies, goods, services, equipment partnership or limited liability company agreement or other assets involving future similar Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between Ensco and its Subsidiaries or among Ensco’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of Ensco or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any Contract that obligates Ensco or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person other than any loan or capital contribution to, or investment in, (A) Ensco or one of its Subsidiaries or (B) any person (other than an officer, director or employee of Ensco or any of its Subsidiaries) that is less than $50.0 million to such person;
(viii) any Contract that by its terms calls for aggregate payments by or to the Company Ensco or any of its Subsidiaries of more than $200,000 50.0 million in the aggregate over the remaining term of such Contract, except for (other than A) Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
with a customer and (iiB) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any such Contract or series of related Contracts involving payments that may be cancelled by or to the Company Ensco or any of its Subsidiaries with a penalty or other liability of more less than $50,000 in the aggregate that requires consent 10.0 million to Ensco or any of its Subsidiaries, upon notice of 60 days or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)less;
(ix) all leases any Contract that involves, or subleases for real or personal property involving is reasonably expected in the future to involve, annual expense in excess revenues of $1,000 and not cancelable by the Company (without premium or penalty) within six months50.0 million;
(x) any Contract that (A) limits providing for drilling unit construction, repair, modification, life extension, overhaul or conversion for an amount in any material respect the freedom excess of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time$50.0 million;
(xi) agreements by the Company or any Contract with a customer with a remaining duration of its Subsidiaries not to acquire assets or securities of a third party (greater than 180 days, including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessfixed price customer options;
(xii) any material Contract providing for the indemnification by the Company that includes any affiliate of Ensco as a counterparty or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company third party beneficiary and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract that would be required to be filed by the Company pursuant to disclosed under Item 601(a)(10) 404 of Regulation S-K of the SEC.;
(bxiii) The Company has prior to the date of this Agreement delivered any Contract that contains “earn out” or Made Available to Parent complete and accurate copies of each Company Material Contract listedother contingent payment obligations, or required to be listedremaining indemnity or similar obligations, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not that could reasonably be expected to have, individually or result in payments after the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received date hereof by the Company Ensco or any of its Subsidiaries. Neither Subsidiaries in excess of $50.0 million;
(xiv) any lease or sublease with respect to an Ensco Leased Real Property with remaining payments in excess of $10.0 million; and
(xv) any Contract the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default loss or breach under the terms of any Company Material Contract except for such instances of default or breach that which would not reasonably be reasonably likely expected to result in a have an Ensco Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Transaction Agreement (Ensco PLC), Transaction Agreement (Rowan Companies PLC)
Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) Except as set forth on Schedule 4.1(s)(i) attached hereto, the Seller is not, nor to the Seller's Knowledge is any other party, in breach of or in default under any Material Contract or series Assumed Liability and no event has occurred which, with notice and/or lapse of related Contracts for time, would constitute a default by the purchaseSeller or any other party under any such Material Contract. The Seller has not received any notice from or given any notice to any other party indicating that the Seller or, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company Knowledge of Seller such other party, as the case may be, is presently in default under or in breach or violation of any of its Subsidiaries of more than $200,000 such Material Contract in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);any material respect.
(ii) any material sales agencyExcept as set forth on Schedule 4.1(s)(ii) attached hereto, sales representationneither CPLC (after the consummation of the Contribution Transaction) nor the Seller is a party to, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments bound by or subject to the Company any Material Contract, or any other Contract (whether or not in writing) of its Subsidiaries of more than $50,000 in the aggregate following kinds that requires consent of will constitute a Transferred Asset or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that an Assumed Liability: (A) limits in any material respect the freedom of the Company employment contract, agreement or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010commitment; (B) record any indebtedness, contract, agreement or beneficial owner of five percent or more of the voting securities of Companycommitment to incur indebtedness for borrowed money; or (C) affiliate (as such term any contract, agreement or commitment to which the Seller is defined in Rule 12b-2 promulgated under a party relating to the ▇▇▇▇ ▇▇▇) disposition or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 acquisition of the ▇▇▇▇ ▇▇▇) of stock or assets of, or any such officerinterest in, director or beneficial ownerany business enterprise; and
(xivD) any contract, agreement or commitment relating to capital expenditures and involving future payments which, together with future payments under all other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior contracts, agreements or commitments relating to the date of this Agreement delivered same capital project, exceed $50,000; (E) any guarantee or Made Available indemnification running to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those any Person which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to haveinvolves, individually or in the aggregate, a contingent liability of $50,000 or more; (F) any contract, agreement or commitment providing for the collection, servicing or administration of leases, loans, conditional sales agreements or financial instruments of a similar type, by the Seller or CPLC on behalf of any other Person; (G) other than the Servicing Agreement, any contract, agreement or commitment providing for the collection, servicing or administration by any Person of any part of the leases, loans, conditional sales agreements or financial instruments of a similar type of the Seller or CPLC on behalf of the Seller or CPLC; (H) any contract, agreement or commitment in favor of any Person to purchase Financing Contracts, or any interests or participation therein, or any contract, agreement or commitment by the Seller to sell Financing Contracts, or any interests or participation therein; (I) other than this Agreement, any contract, agreement or commitment containing any covenant or provision limiting the freedom of the Seller or CPLC to engage in any line of business or compete with any Person in any geographic area; (J) any contract, agreement or commitment that would, if performed in accordance with its terms, have a Material Adverse Effect Effect; (K) any contract, agreement or commitment limiting the right of CPLC to pay dividends or distributions to its shareholders; (L) any hedging, cap, swap or other derivative contract or agreement; (M) any contract, agreement or commitment in which the Seller or CPLC participates as a general partner or joint venturer; or (N) any lease of tangible personal Property (where the Seller or CPLC is the lessee) involving aggregate payments in excess of $50,000 other than those which may be canceled without penalty in 30 days. Each contract, agreement or commitment required to be set forth on Schedule 4.1(s)(ii) or Schedule 4.1(s)(iii) attached hereto is valid, binding and enforceable against the Companyparties thereto in accordance with its terms, and no written notice except to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received the extent the foregoing may be limited by the Company Bankruptcy Exception and, except as otherwise noted on Schedule 4.1(s)(ii) or Schedule 4.1(s)(iii), is in full force and effect without any of its Subsidiaries. Neither default thereunder by the Company nor any of its Subsidiaries norSeller or CPLC or, to the Knowledge of the CompanySeller, by any other party thereto.
(iii) Schedule 4.1(s)(iii) attached hereto sets forth (A) a list (including the names of the parties thereto is in default and dates thereof) of all existing Program Agreements of the Seller, identifying those which are not terminable without penalty upon 90 days' or breach less notice by the Seller, (B) a description of all negotiations concerning the creation of any new Program Agreement of the Seller and (C) a list of all Active Brokers.
(iv) Upon the consummation of the transactions contemplated hereby and subject to the terms and conditions hereof, CPLC will be entitled to all of the benefits under the terms of any Company Material Contract except for such instances of default contracts, agreements and commitments required to be set forth on Schedule 4.1(s)(ii) or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanySchedule 4.1(s)(iii).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pitney Bowes Credit Corp), Stock Purchase Agreement (Pitney Bowes Inc /De/)
Material Contracts. (a) Section 5.14 2.19 of the Company Disclosure Schedule lists each contains a complete list of the following Contracts, whether all material contracts (written or oral), plans, undertakings, commitments or agreements to which the Company or any of its Subsidiaries subsidiaries is a party or by which it any of them is bound as of the date of this Agreement Agreement.
(each such Contract listed or required to be so listed, b) Section 2.19 of the Company Disclosure Schedule contains a “Company Material Contract”):complete and accurate list of the following:
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, guarantor (excluding trade payables or receivables arising in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwisebusiness);
(ixii) all leases contracts or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect agreements containing covenants limiting the freedom of the Company or any of its Subsidiaries subsidiaries or affiliates to engage or compete in any line of business or compete with any Person person or in operate at any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timelocation;
(xiiii) agreements by change in control or similar arrangements with any officers, employees or agents of the Company that will result in any obligation (absolute or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreementscontingent) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries subsidiaries to make any payment to any officers, employees or agents of the Company following either the consummation of the transactions contemplated hereby, termination of employment, or both (including standstill agreementsother than as set forth in Section 2.10(e) of the Company Disclosure Schedule);
(iv) labor contracts;
(v) license, in each case consent, royalty and other agreements concerning Intellectual Property (as defined below) (other than agreements with guides and other providers of content entered into outside in the ordinary course of business);
(xiivi) distribution and syndication partnerships or arrangements;
(vii) joint venture or partnership agreements or joint development or similar agreements pursuant to which any material Contract providing for the indemnification by third party is entitled to develop any products on behalf of the Company or any its subsidiaries (other than agreements with guides and other providers of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case content entered into outside in the ordinary course of business);
(xiiiviii) any contract or agreement for the acquisition, directly or indirectly (by merger or otherwise), of material Contracts with assets (other than inventory) or capital stock of another person; and
(ix) contracts or agreements involving the issuance or repurchase of any (A) officer or director capital stock of the Company or any of its Subsidiaries subsidiaries (or other than the Stock Plans and the ESPP and the Company's repurchase rights with respect to Company Common Stock issued in connection with any other employee who is one of the twenty most highly compensated employees foregoing).
(c) For the purpose of this Agreement, the term "CONTRACTS" shall mean all of the contracts (written or oral), plans, undertakings, commitments and agreements are, or are required to be, contained in Section 2.19 of the Company Disclosure Schedule. True and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more complete copies of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in written Contracts identified on Section 5.14 2.19 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and have been delivered or made available to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyParent.
Appears in 2 contracts
Sources: Merger Agreement (About Com Inc), Merger Agreement (About Com Inc)
Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as As of the date of this Agreement (each such Contract listed or required to be so listedAgreement, a “Company Material Contract”):
except as set forth on Section 2.16 of the XETA Schedule, and except for (i) this Agreement, and (ii) the XETA Employee Benefit Plans, neither XETA nor any Contract of its subsidiaries is a party to or series bound by any contract (whether written or oral) which is:
(A) a loan, guarantee of related Contracts for indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment relating to indebtedness, other than (x) trade debt and advances incurred in the purchaseordinary course of business, receipt(y) accounts payable and (z) intercompany loans to the subsidiaries of XETA;
(B) a contract, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or license pursuant to the Company which XETA or any of its Subsidiaries subsidiaries paid amounts in excess of more than $200,000 in 250,000 within the aggregate 12 month period prior to the date of this Agreement;
(C) a material consulting agreement;
(D) any contract providing for indemnification by XETA or any of its subsidiaries that is material to XETA and its subsidiaries, taken as a whole, other than Contracts involving payments to the Company any contract providing for indemnification of customers or other persons entered into in the ordinary course of business, including investment banking contracts);
(iiE) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series a contract that purports to limit the right of related Contracts involving payments by or to the Company XETA or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries affiliates to engage or compete in any line of business in which XETA or its subsidiaries is engaged or to compete with any Person person or operate in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timelocation;
(xiF) agreements by the Company a contract that creates a partnership, joint venture or any of its Subsidiaries not strategic alliance or similar arrangement that is material to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not XETA with respect to acquire assets or securities any portion of the Company business of XETA or its subsidiaries;
(G) a license, franchise, distributorship or other contract or agreement which relates in whole or in part to any material Intellectual Property of or used by XETA or its subsidiaries, but excluding any commercial off the shelf software with retail value of less than $25,000 per item;
(H) a contract material to XETA with any manufacturer, supplier or provider of products or services that are resold by XETA or its subsidiaries or incorporated into any XETA product that is resold by XETA or its subsidiaries to any third party;
(I) a contract material to XETA providing for the development of any product, system, software, content, technology, or Intellectual Property, independently or jointly, by or for XETA or its subsidiaries, or any contract or agreement providing for the sale of customized or otherwise non-commercially available software, technology, products or services by or to XETA or its Subsidiaries subsidiaries;
(including standstill agreements)J) a contract to which XETA or any subsidiary is a party providing for future performance by XETA or such subsidiaries in consideration of amounts previously paid, in each case excluding maintenance agreements and purchase agreements with customers entered into outside in the ordinary course of business;
(xiiK) a contract to provide source code which constitutes any or part of material Contract XETA Intellectual Property to any third party for any product or technology;
(L) a contract material to XETA with any distributor, reseller, original equipment manufacturer, systems integrator, sales representative, sales agency or manufacturer’s representative or otherwise, providing for the indemnification by the Company distribution or any of its Subsidiaries resale of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerXETA product; and
(xivM) any other Contract required commitment or agreement to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K enter into any of the SECforegoing. All contracts of the type described in this Section 2.16(a) are referred to herein as the “XETA Material Contracts.”
(b) The Company has prior to Other than as a result of the date expiration or termination of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company any XETA Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), its terms and except where the failure to be valid and binding and in full force and effect as has not had and would is not reasonably be expected likely to have, individually or in the aggregate, a XETA Material Adverse Effect Effect, (i) each XETA Material Contract is valid and binding on XETA and any of its subsidiaries that is a party thereto, as applicable, and in full force and effect, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent transfer, reorganization and other laws of general applicability relating to or affecting the rights or remedies of creditors and by general equitable principles (whether considered in a proceeding in equity or at law), and except that any indemnity, contribution and exoneration provisions contained therein may be limited by Applicable Law and public policy, (ii) XETA and each of its subsidiaries has in all material respects performed all obligations required to be performed by it to date under each XETA Material Contract and (iii) neither XETA nor any of its subsidiaries has received written notice of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the Company, and no written notice to terminate and no written notice part of an intent to terminate, in whole or part, any Material Contract has been received by the Company XETA or any of its Subsidiaries. Neither the Company nor subsidiaries or their counterparties under any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company such XETA Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (PAETEC Holding Corp.), Merger Agreement (Xeta Technologies Inc)
Material Contracts. (a) Section 5.14 As of the date of this Agreement, neither the Company Disclosure Schedule lists nor any of its Subsidiaries is a party to or bound by any Contract (each Contract of the following Contracts, whether written or oral, type described in this Section 4.11(a) to which the Company or any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, which the Company or any of its Subsidiaries is a party to or bound by and that has been filed with the SEC prior to the date hereof being referred to herein as a “Company Material Contract”):
(i) that is or will be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act and is not already so filed;
(ii) that limits or purports to limit in any Contract material respect either the type of business in which the Company or series any of related Contracts for its Affiliates may engage or the purchasemanner or locations in which any of them may so engage in any business;
(iii) that includes any “most favored nations” terms and conditions (including with respect to pricing), receiptany exclusive dealing arrangement, lease any arrangement that grants any right of first refusal, right of first offer or use similar right, any area of materialsmutual interest clause or similar clause or any other term, suppliescondition or clause that, goodsin the case of each of the foregoing, servicesindividually or in the aggregate, equipment limits or purports to limit in any material respect the ability of the Company or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business (excluding, in respect of each of the foregoing, customary joint operating agreements);
(iv) that creates a partnership (other than a Tax partnership), joint venture, strategic alliance or similar arrangement with respect to any material business or assets involving future payments by or to of the Company and its Subsidiaries, taken as a whole;
(v) 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 customary joint operating agreements and customary advances to operators of more than $200,000 in Oil and Gas Interests not covered by a joint operating agreement or (B) any loan or capital contribution to, or investment in, (1) the aggregate Company or one of its wholly owned Subsidiaries, (2) any person (other than Contracts involving payments to the Company entered into in the ordinary course any officer, director or employee of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more Subsidiaries) that is less than $50,000 in the aggregate that requires consent of 25 million to such person or notice (3) to a third party in the event of any officer, director or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom employee of the Company or any of its Subsidiaries that is less than $1 million to engage such officer, director or compete in any line of business employee;
(vi) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or with any Person or in any area or which would so limit the freedom of Parent, other agreement (other than those solely between the Company and its Subsidiaries) providing for or any guaranteeing indebtedness in excess of their respective Affiliates after the Effective Time $50 million individually;
(vii) that is an acquisition agreement, asset purchase, stock purchase or other similar agreement pursuant to which (BA) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company reasonably expects that it or any of its Subsidiaries or that would be binding on Parent or its Affiliates is required to pay total consideration (including assumption of debt) after the Effective Time;
date of this Agreement in excess of $50 million or (xiB) agreements by any other person has the Company or any of its Subsidiaries not right to acquire any assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements)or, in each case entered into outside after giving effect to the ordinary course consummation of businessthe Offer or the Merger, Parent or any of its Subsidiaries) or any interests therein after the date of this Agreement with a purchase price of more than $50 million;
(xiiviii) any material Contract that is an agreement providing for the indemnification sale by the Company or any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow the Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “take-or-pay” clause or any Person similar material prepayment or under forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(ix) that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in excess of 20 MMcf (or, in the case of liquids, in excess of 750 barrels) of the Company’s and its Subsidiaries’ Hydrocarbons per day (calculated on a yearly average basis);
(x) that is a treatment, gathering, processing or transportation agreement to which the Company or any of its Subsidiaries has guaranteed any liabilities is a party involving the treatment, gathering, processing or obligations transportation of any other Personmore than 50 MMcf (or, in the case of liquids, in excess of 500 barrels) of Hydrocarbons per day (calculated on a yearly average basis);
(xi) that is a joint development agreement, exploration agreement, participation or program agreement or similar agreement (excluding, in respect of each case entered into outside of the ordinary course foregoing, customary joint operating agreements) that contractually requires the Company and its Subsidiaries to make expenditures that would reasonably be expected to be in excess of business$100 million in the aggregate during the 12-month period following the date of this Agreement;
(xii) that is a collective bargaining agreement;
(xiii) that involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $50 million in any material Contracts with 12-month period, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less, and excluding joint operating agreements and production sales Contracts;
(xiv) that is an Oil and Gas Lease that contains express provisions (A) officer obligating the Company or director any Subsidiary to drill ▇▇▇▇▇, pursuant to which the Company or any Subsidiary would reasonably be expected to be required to expend $25 million on any individual Oil and Gas Lease or $200 million in the aggregate on all obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $10 million that were not satisfied at the time of leasing or signing, (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; and
(xv) that is a settlement or similar agreement with any Governmental Entity or Order or consent of a Governmental Entity to which the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed subject involving future performance by the Company pursuant to Item 601(a)(10) or any of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered its Subsidiaries that is or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required would reasonably be expected to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of material to the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect taken as a whole.
(except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to haveb) Except as, individually or in the aggregate, would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a Material Adverse Effect on the Companywhole, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any each Material Contract has been received by is a valid and binding obligation of the Company or any of its Subsidiaries. Neither Subsidiaries (to the extent they are parties thereto or bound thereby), is in full force and effect and enforceable against the Company nor any of or its Subsidiaries norand, to the Knowledge of the Company, each other party thereto, in accordance with its terms (subject to the Bankruptcy and Equity Exception). Except for breaches, violations or defaults that would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party thereto is in to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default or breach under the terms provisions of such Material Contract, and neither the Company nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract except for such instances or, as of default the date of this Agreement, of an intention by any counterparty (other than the Company or breach that would any of its Subsidiaries) to cancel, terminate or amend in any material respect or not be reasonably likely to result in a renew any Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (Petrohawk Energy Corp), Merger Agreement (BHP Billiton LTD)
Material Contracts. (a) Section 5.14 Except as filed as exhibits to the Company SEC Documents prior to the date of this Agreement, none of the Company Disclosure Schedule lists each or any of its Subsidiaries is a party to or bound by any contract that, as of the following Contractsdate hereof:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act);
(ii) calls for aggregate payments by the Company or any of its Subsidiaries under such contract of more than $12,000,000 over the remaining term of such contract;
(iii) calls for annual aggregate payments by the Company or any of its Subsidiaries under such contract of more than $5,000,000 over the remaining term of such contract;
(iv) contains any non-compete or exclusivity provisions binding on the Company or any of its Subsidiaries with respect to any line of business or geographic area with respect to the Company or any of its Subsidiaries, whether written or oralthat restricts the conduct of any line of business by the Company or any of its Subsidiaries or any geographic area in which the Company or any of its Subsidiary may conduct business;
(v) creates any (x) material partnership, limited liability company agreement, joint venture or other similar agreement entered into with any third party or (y) management, operating, franchise, license or other similar agreement entered into with any third party;
(vi) provides for the purchase, sale or exchange of, or option to purchase, sell or exchange any real property of the Company or any of its Subsidiaries;
(vii) is a contract or agreement 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 for the Company or its Subsidiaries);
(viii) is a material loan agreement, guaranty, letter of credit, indenture, note, bond, debenture, mortgage or any other agreement or instrument evidencing a capitalized leased obligation or other indebtedness of, or for the benefit of, the Company or any Subsidiary or any guaranty thereof; or
(ix) is an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to which the Company or any of its Subsidiaries is a party or by which it is bound as party. Each contract of the date of type described in this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contractsSection 4.18(a);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, not set forth in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom Item 4.18 of the Company or any of its Subsidiaries Letter, is referred to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, herein as a “most favored nationMaterial Contract.”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Material Contract listed, or required to be listedis valid and binding, in Section 5.14 of all material respects, on the Company Disclosure Schedule (including all amendmentsand/or each of its Subsidiaries party thereto, modificationsand, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. each other party thereto.
(c) Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default under any Material Contract and no event or breach under circumstance, with or without notice or the terms passage of time, has occurred pursuant to any Material Contract which would result in a default or acceleration of payment, or forfeiture of any Company Material Contract rights, except for such instances of default or breach that as would not be reasonably likely to (i) prevent or materially delay the consummation of the Merger, the Parent Asset Purchase or the Arizona Asset Purchase and the other transactions contemplated by this Agreement or (ii) result in a Material Adverse Effect on the Company. To the Knowledge of the Company, no counterparty of the Company or any of its Subsidiaries, as applicable, under any Material Contract has failed to perform its material obligations thereunder when required to be so performed and each is current in its material obligations to the Company or its Subsidiaries, as applicable, thereunder.
(d) Prior to the date hereof, the Company has made available true, correct and complete copies of all agreements described in Section 4.18(a).
Appears in 2 contracts
Sources: Merger Agreement (Ashford Hospitality Trust Inc), Merger Agreement (CNL Hotels & Resorts, Inc.)
Material Contracts. (a) Section 5.14 As of the Company Disclosure Schedule lists each of the following Contractsdate hereof, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”)::
(i) any Contract inbound lease, license, purchase or series of related Contracts other similar agreement for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification license by the Company or any of its Subsidiaries of goods, services, Intellectual Property or other assets that has resulted in annual payments by the Company or any Person of its Subsidiaries of $1,000,000 or more during any fiscal year beginning on or after January 1, 2007 or that obligates the Company or any of its Subsidiaries to make payments in any fiscal year of $1,000,000 or more, except for any such contract between the Company and/or any of its Subsidiaries;
(ii) any contract or agreement evidencing Indebtedness, in or for an amount of $500,000 or more, except for any such contract or agreement between the Company and/or any of its Subsidiaries;
(iii) any joint venture, partnership, or similar agreement;
(iv) any contract or agreement relating to the acquisition or disposition of any material business or any interest therein under which the Company or any of its Subsidiaries has guaranteed any liabilities material outstanding rights or obligations of any other Person, in each case entered into outside the ordinary course of businessobligations;
(xiiiv) any material Contracts Company IP Agreement set forth, or required to be set forth, in Section 4.15(a) of the Company Disclosure Schedule; and
(vi) any contract or agreement required to be included in the Company SEC Documents pursuant to Item 601(b)(10) of Regulation S-K of the SEC. Any contract, arrangement, commitment or understanding of the type described in this Section 4.20(a) above, together with any outbound lease, license, sale or other similar agreement (Aexcluding any purchase orders) officer providing for the sale, lease or director license by the Company or any of its Subsidiaries of goods, services, Intellectual Property or other assets that is expected to result in annual payments to the Company or any of its Subsidiaries of $1,000,000 or more, except for any such contract between the Company and/or any of its Subsidiaries, will be referred to herein as a “Material Contract”.
(b) Each of the Material Contracts is valid and in full force and effect and neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract. Neither the Company nor any of its Subsidiaries is party to any contract, agreement, arrangement or understanding containing any provision or covenant limiting in any material respect the ability of the Company or any of its Subsidiaries (or any other employee who is one or, after the consummation of the twenty most highly compensated employees of Merger, Parent, the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record Surviving Corporation or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”respective Subsidiaries) to (as such terms are respectively defined i) sell any products or services of or to any other Person or in Rule 12b-2 and Rule 16a-1 any geographic region, (ii) engage in any line of business or (iii) compete with or to obtain products or services from any Person or limiting the ▇▇▇▇ ▇▇▇) ability of any such officer, director Person to provide products or beneficial owner; and
(xiv) any other Contract required services to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither Subsidiaries (or, after the Company nor consummation of the Merger, Parent, the Surviving Corporation or any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companytheir respective Subsidiaries).
Appears in 2 contracts
Sources: Merger Agreement (STG Ugp, LLC), Merger Agreement (MSC Software Corp)
Material Contracts. (a) Section 5.14 Seller has made available to Buyer for inspection true and complete copies of all Material Agreements. Schedule 2.10 of the Company Disclosure Schedule lists Letter sets forth a list of each of the following Contracts, whether written or oral, contracts to which the any Transferred Company or any of its Subsidiaries is a party or by which it is Assets are bound as of the date of this Agreement (each such Contract listed or required excluding insurance policies, it being understood and agreed that from and after the Closing, the Transferred Companies shall cease to be so listedinsured under such policies) (collectively, a the “Company Material ContractAgreements”):
(ia) any Contract pursuant to which Indebtedness of the Transferred Company has been incurred, other than Seller’s group wide debt facilities under which the Transferred Companies will have no obligations following the Closing;
(b) any obligation to make payments, contingent or series otherwise, arising out of related Contracts the prior acquisition of the Assets or businesses of other Persons (other than accounts payable constituting current liabilities);
(c) any Contract containing (x) non-competition covenants or (y) other covenants restricting the current or future development, manufacture, marketing or distribution of the products and services of any Transferred Company (other than, in the case of clause (y), confidentiality, employment, management, consulting and other similar agreements entered into in the Ordinary Course of Business and those contained in license, distribution, toll manufacturing and similar agreements, in each case which are not material);
(d) any lease, sublease or similar Contract with any Person (other than a Transferred Company) under which any Transferred Company is a lessor or sublessor of, or otherwise grants any interest to any Person (other than a Transferred Company) in any Owned Property or any Leased Property;
(e) lease, sublease or similar Contract with any Person (other than a Transferred Company) under which (A) any Transferred Company is lessee or sublessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) any Transferred Company is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by any Transferred Company, in any such case which has an aggregate future liability or receivable, as the case may be, in excess of U.S. $50,000;
(f) (A) continuing Contract for the purchase, receipt, lease or use future purchase of materials, suppliessupplies or equipment, goodsor (B) management, servicesservice, equipment consulting or other assets similar Contract in any such case which has an aggregate future liability to any Person (other than a Transferred Company) in excess of U.S. $50,000 and which is not terminable by the relevant Transferred Company on 180 days (or less) notice;
(g) Contract under which any Transferred Company has made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than a Transferred Company and other than extensions of trade credit in the Ordinary Course of Business);
(h) Contract granting a Lien upon any Intellectual Property or any other material Asset of any Transferred Company (other than a Permitted Lien);
(i) Contract entered into outside the Ordinary Course of Business providing for indemnification of any Person with respect to material Liabilities relating to any current or former business of any Transferred Company or any predecessor Person;
(j) Contract for the sale of any material Asset of any Transferred Company (other than inventory sales in the Ordinary Course of Business) or the grant of any preferential rights to purchase any such material Asset;
(k) hedging agreement (such as a currency exchange, interest rate exchange, commodity exchange or similar Contract) that will be binding on a Transferred Company after the Closing;
(l) Contract for any joint venture, partnership or similar arrangement;
(m) Contract pursuant to which a Transferred Company is the licensee or licensor of material Intellectual Property or otherwise granted any right, title or interest in, to or under any material Intellectual Property; and
(n) Contract providing for the services of any dealer, distributor, sales representative, franchisee or similar representative involving future payments the payment or receipt over the life of such Contract following the Closing in excess of U.S. $50,000 by or any Transferred Company. Neither any Transferred Company nor, to the Company Knowledge of Seller, any other party to any Material Agreement is in material breach or default of or under any such Material Agreement, and to the Seller’s Knowledge no event has occurred that with the lapse of time or the giving of notice, or both, would constitute a material breach or default of any other party thereto. Each Material Agreement is in all material respects a valid and binding obligation of each of the parties thereto and are enforceable against such parties in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar Laws affecting creditors’ rights generally. The execution, delivery and performance by Seller of this Agreement and the Ancillary Agreements to be executed and delivered by Seller or any of its Subsidiaries Affiliates, and the consummation of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of businesstransactions contemplated hereby and thereby by Seller and its Affiliates, including investment banking contracts);
(ii) any material sales agencydo not and will not, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect, conflict with, result in the modification or cancellation of, render unenforceable, or give rise to any right of termination in respect the freedom of the Company (with due notice or any lapse of its Subsidiaries to engage time or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiiboth) any material Contract providing for the indemnification by the Company or any Material Agreement. As of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available Agreement, no party to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 any of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its SubsidiariesAgreements has exercised any termination rights with respect thereto, and to the Knowledge of the Company are binding obligations Seller no party has given notice of any material dispute with respect to any Material Agreements. Seller has made available to Buyer true, correct and complete copies of all of the Material Agreements, together with all amendments, modifications or supplements thereto. The Transferred Companies are not party to any Contract (other parties theretothan this Agreement, Benefit Plans, Contracts relating to employment or termination of employment and are Contracts that will not remain in full force and effect following the Closing) with (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, A) any Material Contract has been received by the Company Rockwood Seller or any Affiliate of its Subsidiaries. Neither the Company nor any Rockwood Seller (other than a Transferred Company) or (B) any current or former officer, employee or director of its Subsidiaries nor, to the Knowledge of the any Transferred Company, any other party thereto is in default Rockwood Seller or breach under the terms any Affiliate of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyRockwood Seller.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Om Group Inc), Stock Purchase Agreement (Rockwood Specialties Group Inc)
Material Contracts. (a) Except for this Agreement or as set forth on Section 5.14 3.09(a) of the Company Disclosure Schedule lists each of the following ContractsSchedule, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such any Contract listed whether written or required to be so listed, a “Company Material Contract”):oral:
(i) with any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)current Key Personnel;
(ii) with any material sales agency, sales representation, distributorship labor union or franchise agreement;
(iii) association representing any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom employee of the Company or any of its Subsidiaries to engage or compete and any collective bargaining agreement;
(iii) that is a “material contract” (as such term is defined in any line Item 601(b) (10) of business or with any Person or in any area or which would so limit Regulation S-K of the freedom of Parent, SEC not otherwise listed on the Company Disclosure Schedule);
(iv) that is a partnership or joint-venture agreement;
(v) relating to the borrowing of money (including any guarantee thereto) or that is a mortgage, security agreement, capital lease or similar agreements, in each case in excess of their respective Affiliates after the Effective Time $100,000 or (B) contains that creates a Lien on any material exclusivity, “most favored nation”, rights asset of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries;
(xivi) agreements by that limits or purports to limit the ability of the Company or any of its Subsidiaries not Affiliates to acquire compete or engage in any line of business, in any geographic area or with any person, except for certain radius restrictions or use restrictions that may be contained in deeds, leases or similar agreements for individual restaurant locations that were granted in the ordinary course of business consistent with past practice;
(vii) for the license or sublicense of any Intellectual Property or other intangible asset (whether as a licensor or a licensee), that provides for payment of $25,000 or more per year;
(viii) constituting a franchise agreement or a franchise related development agreement;
(ix) relating to the sale of any of the assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities properties of the Company or any of its Subsidiaries (including standstill agreements), other than in each case entered into outside the ordinary course of businessbusiness or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties, except for rights of repurchase or recapture rights or rights of first refusal that may be contained in deeds, leases, or similar agreements for individual restaurant locations that were granted pursuant to, or in connection with, real estate Contracts entered into by the Company in the ordinary course of business consistent with past practice;
(xiix) any material Contract providing for relating to the indemnification acquisition by the Company or any of its Subsidiaries of any Person operating business or under which the capital stock of any other person;
(xi) requiring the payment to any person of a commission or fee, except in the ordinary course of business consistent with past practices;
(xii) with suppliers of any goods and services that provides for payment of $100,000 or more per year;
(xiii) relating to restaurant services, management, or similar agreement with total payments by the Company or any of its Subsidiaries has guaranteed any liabilities or obligations in excess of any other Person, in each case entered into outside the ordinary course of business$100,000 per year;
(xiiixiv) in the case of a Company Benefit Plan, that provides any material Contracts with benefits which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(Axv) that are insurance policies providing for indemnification of any officer or director of the Company or any of its Subsidiaries (or any Subsidiaries, other employee who is one of than the twenty most highly compensated employees Company Articles, Company Bylaws and other organizational documents, as currently in effect, of the Company and each of its Subsidiaries;
(xvi) that is an advertising or a marketing contract other than media contracts purchased in the ordinary course of business or that provides for payments in excess of $25,000 per year;
(xvii) that constitutes a Tip Rate Alternative Commitment Agreement (“TRAC Agreement”) with the twelve-month periods ended November 30Internal Revenue Service;
(xviii) other than those types of Contracts listed in clauses (i) to (xvii) above, 2009 and 2010; (B) record those that involve payments by the Company or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”) (as such terms its Subsidiaries in excess of $25,000 per year, in each case that are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director not terminable without premium or beneficial ownerpenalty on 90 days’ or less notice; and
(xivxix) that would prevent, materially delay or materially impede the consummation of any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECtransactions contemplated by this Agreement. All Contracts of the types described in this Section 3.09 shall be collectively referred to herein as the “Material Contracts.”
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 3.09(a) of the Company Disclosure Schedule sets forth a list of all Material Contracts as of the date of this Agreement, except that with respect to current and former agreements and arrangements with wholesalers or distributors covered by subsections 3.09(a)(vi), (including all amendmentsviii) and (xviii), modifications, extensions and renewals thereto and waivers thereunder). All Material Contracts have been listed in Section 3.09(a) of the Company Material Contracts are valid Disclosure Schedule and binding obligations true and complete copies of all such written agreements have been delivered or made available to Parent and Merger Sub for all wholesalers and distributors that purchased alcoholic beverages from the Company and its Subsidiaries, Subsidiaries during 2007 or 2008 and all such other Material Contracts known to the Knowledge of Company after good faith effort to identify the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be same. Each such Material Contract is valid and binding and in full force and effect and enforceable in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether considered in a proceeding in equity or at law). Neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any counterparty to any Material Contract, has violated or is alleged to have violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on Effect. True and complete copies of all written Material Contracts have been delivered or made available to Parent and Merger Sub, except as provided for herein.
(c) Section 3.09(c) of the Company, Company Disclosure Schedule sets forth the true and no written notice to terminate and no written notice correct amounts of an intent to terminate, Earn Out Payments (as defined in whole or part, any Material Contract has been received the PBC Asset Purchase Agreement) paid by the Company or any its Subsidiaries in each of its Subsidiariescalendar years 2004, 2005, 2006 and 2007 under the Asset Purchase Agreement (the “PBC Asset Purchase Agreement”), dated January 26, 2004, by and between Portland Brewing Company and the Company. Neither Based on current production projections and reasonable forecasts of the Company, neither the Company nor any of its Subsidiaries nor, will be obligated to pay any Earn Out Payments for Earn Out Product (as defined in the Knowledge of PBC Asset Purchase Agreement) sold during the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companycalendar year 2008.
Appears in 2 contracts
Sources: Merger Agreement (Independent Brewers United, Inc.), Merger Agreement (Pyramid Breweries Inc)
Material Contracts. (a) Except for agreements, contracts, plans, leases, arrangements or commitments set forth in Section 5.14 3.11 of the Company Seller Disclosure Schedule lists each of Schedule, with respect to the following ContractsBusiness, whether written or oral, to which the Company or neither Seller nor any of its Subsidiaries predecessor is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):subject to:
(i) any Contract Any lease providing for annual rentals of $1,000 or series of related Contracts more;
(ii) Any contract for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for annual payments of $1,000 or more;
(iii) Any sales, distribution or other similar agreement providing for the sale of materials, supplies, goods, services, equipment or other assets that provides for annual payments of $1,000 or more;
(iv) Any partnership, joint venture or other similar contract or arrangement;
(v) Any contract relating to indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by or any asset), except contracts relating to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into indebtedness incurred in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than business in an amount not exceeding $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity1,000;
(vi) Any license agreement, franchise agreement or agreement in respect of similar rights granted to or held by Seller or any collective bargaining agreementspredecessor;
(vii) any material joint ventureAny agency, profit sharingdealer, partnership agreements reseller, sales representative or other similar agreementsagreement;
(viii) any Contracts Any agreement, contract or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract commitment that (A) substantially limits in any material respect the freedom of the Company Seller or any of its Subsidiaries predecessor to engage or compete in any line of business or with any Person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Purchased Asset or which would so limit the freedom of Parent, the Company or any of their respective Affiliates Buyer after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xiix) agreements by Any agreement, contract or commitment which is or relates to an agreement with or for the Company benefit of any affiliate of Seller; or
(x) Any other contract or any of its Subsidiaries commitment not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), made in each case entered into outside the ordinary course of business;
(xii) any business that is material Contract providing for to the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECBusiness.
(b) The Company Seller has prior provided or otherwise made available to the date of this Agreement delivered or Made Available to Parent Buyer complete and accurate copies of each Company Material Contract listedall standard form agreements used by the Seller or any predecessor that relate to the Purchased Assets, including all customer agreements, development agreements, distributor or reseller agreements, employee agreements containing intellectual property assignments or licenses or confidentiality provisions, consulting or independent contractor agreements containing intellectual property assignments or licenses or confidentiality provisions, and confidentiality or nondisclosure agreements. Schedule 3.11 of the Seller Disclosure Schedule sets forth a complete and accurate list of all Contracts entered into by the Seller or any predecessor that include deviations from such standard form agreements.
(c) Each agreement, contract, plan, lease, arrangement and commitment required to be listed, in disclosed on Section 5.14 3.11 of the Company Seller Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is a valid and binding obligations agreement of the Company Seller and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company neither Seller nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances agreement, contract, plan, lease, arrangement or commitment, nor to the knowledge of Seller, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. Except as set forth on Section 3.11 of the Seller Disclosure Schedule, Seller and its predecessors have performed all obligations required to be performed by it under each Contract prior to the Closing.
(d) Except as set forth on Section 3.11 of the Seller Disclosure Schedule, (i) the consummation of the transactions contemplated hereby will not afford any other party the right to terminate, modify, or breach that would not be reasonably likely exercise any right to result increased or accelerated performance under, any Contract and (ii) none of the Contracts (A) contains a provision preventing, prohibiting or requiring any consent or notice in connection with the transfer or assignment of such Contract to Buyer or (B) contains a Material Adverse Effect on “change of control” or similar provision triggered by the Companyconsummation of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Commercetel Corp), Asset Purchase Agreement (Commercetel Corp)
Material Contracts. (a) Other than as set forth on Section 5.14 4.10(a) of the Company Partner Disclosure Schedule lists each of Schedule, with respect to the following ContractsPartner Contributed Business, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound no Partner Party as of the date of this Agreement (each such Contract listed hereof is a party to or required to be so listed, a “Company Material Contract”):bound by:
(i) any Contract lease (whether of real or series personal property) (A) providing for annual rentals of related Contracts $200,000 or more that cannot be terminated on not more than 60 days’ notice without payment by a Partner Party of any material penalty or (B) under which it is a lessor of or permits any third party to hold or operate any property owned by it;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either (A) annual payments by the Partner Parties of $200,000 or to more or (B) aggregate payments by the Company Partner Parties of $200,000 or any of its Subsidiaries of more, in each case that cannot be terminated on not more than $200,000 in 60 days’ notice without payment by the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course Partner Parties of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreementpenalty;
(iii) any Contract sales, distribution or series other similar agreement providing for the sale by the Partner Parties of related Contracts involving materials, supplies, goods, services, equipment or other assets that provides for annual payments by or to the Company Partner Parties of $1,000,000 or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany material partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatearrangement;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a any material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixvi) all leases any agreement relating to indebtedness for borrowed money or subleases for real the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or personal property involving annual expense in excess secured by any asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $1,000,000 or (B) entered into subsequent to the date of $1,000 and not cancelable this Agreement as permitted by the Company (without premium or penalty) within six monthsSection 6.01;
(xvii) any Contract material agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Partner Parties to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or area;
(Bviii) contains any material exclusivityagreement with or for the benefit of any Affiliate of Partner;
(ix) any material agreement with independent contractors, “most favored nation”distributors, rights of first refusaldealers, rights of first negotiation franchisers, manufacturers’ representatives, sales agencies or franchisees;
(x) any profit sharing, stock appreciation, deferred compensation, severance or other similar obligations plan or restrictions that are binding on arrangement for the Company or any benefits of its Subsidiaries current or that would be binding on Parent former managers, members, officers or its Affiliates after the Effective Timeemployees;
(xi) agreements by the Company any collective bargaining agreement or other contract to or with any of its Subsidiaries not to acquire assets labor union or securities other employee representative of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities group of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessemployees;
(xii) any material Contract providing for the indemnification by the Company or any power of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessattorney that is currently effective and outstanding;
(xiii) any material Contracts settlement, conciliation or similar agreement with any (A) officer Governmental Authority, or director that will require a Partner Party to pay consideration after the date hereof in excess of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and$200,000;
(xiv) any agreement relating to the licensing of material Partner Transferred IP and/or Partner Licensed IP by any Partner Party to any Person or by any Person to any Partner Party (other Contract required than non-exclusive licenses granted in the ordinary course of business);
(xv) any agreement for the purchase of sand or sand products; or
(xvi) any contract for the employment or engagement of any officer, individual employee, or other person or entity on a full-time, part-time, consulting or other basis involving compensation in excess of $200,000 or agreement providing severance or other termination payments or benefits or relating to be filed by the Company pursuant loans to Item 601(a)(10) of Regulation S-K of the SECofficers, directors, employees or Affiliates.
(b) The Company Partner has prior made available to Baker Hughes true and complete copies of the Partner Contributed Contracts, in each case as amended or otherwise modified and in effect as of the date hereof. Each Partner Contributed Contract is in full force and effect, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of this Agreement delivered or Made Available to Parent complete equity and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of represents the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and Partner or one of its SubsidiariesAffiliates party thereto and, and to the Knowledge knowledge of Partner, represents the Company are valid and binding obligations of the other parties thereto. Neither Partner nor any of its Affiliates has received written notice of cancellation of any Partner Contributed Contract, and are in full force and effect (except those the cancellation of which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to havebe, individually or in the aggregate, a Material Adverse Effect on material to the Company, and no written notice to terminate and no written notice of an intent to terminatePartner Contributed Business. Except, in whole each case, where the occurrence of such breach or partdefault would not reasonably be expected to be, any Material Contract has been received by individually or in the Company or aggregate, material to the Partner Contributed Business taken as a whole, (x) neither Partner, any of its Subsidiaries. Neither the Company nor any of its Subsidiaries Affiliates nor, to the Knowledge knowledge of the CompanyPartner, any other party thereto is in breach of or default under any such Partner Contributed Contract and (y) as of the date of this Agreement, neither Partner nor any of its Affiliates has received any written claim or written notice of material breach of or material default under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyPartner Contributed Contract.
Appears in 2 contracts
Sources: Contribution Agreement (BJ Services, Inc.), Contribution Agreement (Baker Hughes Inc)
Material Contracts. (a) Section 5.14 of Neither the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):any:
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments this Agreement) that is required to be filed by the Company entered into in as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the ordinary course of business, including investment banking contracts)SEC;
(ii) any material sales agencyindenture, sales representationcredit agreement, distributorship loan agreement, security agreement, guarantee, note, mortgage or franchise agreementother evidence of Indebtedness or Contract providing for Indebtedness in excess of $5,000,000;
(iii) any Contract (other than this Agreement) entered into in connection with the sale or series acquisition of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities outstanding obligations that are material (other than sales of inventory, product or obligations obsolete equipment or acquisitions of any other Personfeedstock, in each case entered into outside case, in all material respects in the ordinary course of business);
(xiiiiv) Contract containing covenants binding on the Company or any material Contracts with any (A) officer or director of its Subsidiaries that materially restricts the ability of the Company or any of its Subsidiaries (or any other employee who is one which, following the consummation of the twenty most highly compensated employees Merger, could materially restrict the ability of the Surviving Corporation or any of its Affiliates) to compete in any business that is material to the Company and its Subsidiaries, taken as a whole, or with any Person or in any geographic area or solicit any client or customer, except for any such Contract that may be canceled without penalty by the Company or any of its Subsidiaries upon notice of 60 days or less;
(v) for Contract with respect to a material joint venture or material partnership or similar arrangement or agreement (excluding information technology Contracts);
(vi) Contract that would prevent or delay the twelve-month periods ended November 30Company from performing its obligations under this Agreement in any material respect;
(vii) other Contract (other than this Agreement, 2009 purchase orders in the ordinary course of business, agreements between the Company and 2010; (B) record any of its wholly owned Subsidiaries or beneficial owner of five percent or more between any of the voting securities Company’s wholly owned Subsidiaries or Company Benefit Plans) under which the Company and its Subsidiaries are obligated to make or receive payments in the future in excess of Company; $10,000,000 per annum or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under $50,000,000 during the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 life of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andContract;
(xivviii) any Contract that grants any right of first refusal, right of first offer, put, call or similar right with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(ix) any Contract with any Affiliate or other Contract Person that would be required to be filed by the Company pursuant to disclosed under Item 601(a)(10404(a) of Regulation S-K of promulgated under the SEC.Exchange Act; and
(bx) The (A) any Contract that expressly obligates the Company has prior or any of its Subsidiaries (or following the Closing, Parent or any of its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis, (B) any Contract that contains “most favored nation” or similar covenants, or (C) any Contract that requires the Company or any of its Subsidiaries to “take or pay” with respect to the date purchase of this Agreement delivered any goods or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listedservices, in Section 5.14 each of the Company Disclosure Schedule cases (including all amendmentsA), modifications(B) and (C), extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of where such obligation, covenant or requirement, respectively, is material to the Company and its Subsidiaries, and taken as a whole. Each such Contract described in clauses (i)-(x) is referred to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect herein as a “Material Contract.”
(except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither (i) neither the Company nor any of its Subsidiaries noris (and, to the Knowledge of the Company, any no other party thereto is) in default under any Material Contract, (ii) each of the Material Contracts is in default or breach full force and effect, and is the valid, binding and enforceable obligation of the Company and its Subsidiaries, and to the Knowledge of the Company, of the other parties thereto, subject to the General Enforceability Exceptions, (iii) the Company and its Subsidiaries have, and to the Knowledge of the Company, the counterparties thereto have, performed all obligations required to be performed by them to date under the terms Material Contracts and are not (with or without the lapse of time or the giving of notice, or both) in material breach thereunder, and (iv) neither the Company nor any Company Material Contract except for such instances of default or breach that would not be reasonably likely its Subsidiaries has received any notice of termination with respect to, and, to result in a Material Adverse Effect on the Knowledge of the Company, no party has threatened to terminate, nor are there any disputes pending, or to the Knowledge of the Company, threatened with respect to any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Westlake Chemical Corp), Merger Agreement (Axiall Corp/De/)
Material Contracts. (a) Except as disclosed in Section 5.14 3.18 of the Company NAPW Disclosure Schedule lists each of the following ContractsSchedule, whether written and except for this Agreement, NAPW is not bound by any contract, arrangement, commitment or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):understanding:
(i) that constitutes a partnership, joint venture, technology sharing or similar agreement between NAPW and any Contract other person;
(ii) with respect to the service of any directors, officers, employees, or series independent contractors or consultants that are natural persons, involving the payment of related Contracts for $100,000 or more in any 12 month period, other than those that are terminable by NAPW on no more than 30 days’ notice without penalty;
(iii) that limits the purchaseability of NAPW to compete or enter into in any line of business, receiptin any geographic area or with any person and, lease in each case, which limitation or use of materials, supplies, goods, services, equipment or other assets involving future payments by requirement would reasonably be expected to be material to NAPW;
(iv) with or to a labor union, works council or guild (including any collective bargaining agreement or similar agreement);
(v) relating to the Company use or right to use Intellectual Property, including any of its Subsidiaries of more than $200,000 in the aggregate (license or royalty agreements, other than Contracts involving payments to the Company agreements entered into in the ordinary course of businessbusiness and that are not material to NAPW;
(vi) that provides for indemnification by NAPW to any person, including investment banking contractsother than an agreement entered into in the ordinary course of business and that is not material to NAPW;
(vii) between NAPW and any current or former director or officer of NAPW, or any affiliate of any such person (other than NAPW Benefit Plan);
(iiviii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to (A) Indebtedness, (B) any capital lease obligations to any person other than NAPW, (C) any obligations to any person other than NAPW in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than NAPW under interest rate swap, hedging or similar agreements, (E) any obligations to pay to any person other than NAPW the Merger in order to avoid a breach deferred purchase price of property or termination ofservices, a loss of benefit under(F) indebtedness secured by any Lien on any property owned by NAPW even though the obligor has not assumed or otherwise become liable for the payment thereof, or triggering a price adjustment, right (G) any guaranty of renegotiation or other remedy under, any such agreementobligations described in clauses (A) through (F) of any person other than NAPW, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notescase, loans, agreements, indentures, evidences having an outstanding amount in excess of indebtedness $250,000 individually or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 500,000 in the aggregate;
(vix) that is material to NAPW or that contains any Contract restricting the payment of dividends so called “most favored nation” provision or the repurchase of stock similar provisions requiring NAPW to offer to a person any terms or conditions that are at least as favorable as those offered to one or more other equitypersons;
(vix) pursuant to which any collective bargaining agreementsagent, sales representative, distributor or other third party markets or sells any NAPW Product;
(viixi) pursuant to which NAPW is a party granting rights of first refusal, rights of first offer or similar rights to acquire any material joint venture, profit sharing, partnership agreements business or other similar agreementsassets of NAPW;
(viiixii) any Contracts or series of related Contracts relating to the acquisition purchase or disposition of a material amount sale of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessNAPW;
(xiii) relating to the issuance of any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or NAPW (Cother than those set forth on Section 3.2(a) affiliate (as such term is defined in Rule 12b-2 promulgated under to the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andDisclosure Schedule);
(xiv) pursuant to which any material asset of NAPW is leased;
(xv) relates to the purchase of (A) any equipment entered into since December 31, 2013 and (B) any materials, supplies, or inventory since December 31, 2013, other than any agreement which, together with any other Contract required to be filed related agreement, involves the expenditure by the Company NAPW of less than $100,000;
(xvi) that represents a purchase order with any supplier for the purchase of inventory items in an amount in excess of $100,000 of materials;
(xvii) pursuant to Item 601(a)(10which NAPW is a party and having a remaining term of more than one (1) of Regulation S-K year after the date hereof or involving a remaining amount payable thereunder (either to or from NAPW) as of the SEC.date hereof, of at least $100,000;
(bxviii) The Company has prior to that involves the payment of $250,000 or more in any 12 month period after the date hereof; or
(xix) that would prevent, delay or impede the consummation, or otherwise reduce the contemplated benefits, of any of the transactions contemplated by this Agreement delivered Agreement. NAPW has previously made available to PDN or Made Available to Parent its representatives complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule type described in this Section 3.18(a) (including all amendments, modifications, extensions and renewals thereto and waivers thereundercollectively referred to herein as “NAPW Material Contracts”). .
(b) All of the Company NAPW Material Contracts were entered into at arms’ length in the ordinary course of business and are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (effect, except those which are cancelled, rescinded or terminated after to the date of this Agreement extent they have previously expired in accordance with their terms). NAPW has not given or received a notice of cancellation or termination under any NAPW Material Contract, or has, or is alleged to have, and to the knowledge of NAPW, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a default under the provisions of, any NAPW Material Contract.
(c) NAPW is not in breach of or default under the terms of any NAPW Material Contract, except where the failure to be valid and binding and in full force and effect for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a NAPW Material Adverse Effect on Effect. To the Companyknowledge of NAPW, and no written notice other party to terminate and no written notice of an intent to terminate, in whole or part, any NAPW Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in breach of or default or breach under the terms of any Company NAPW Material Contract except for any such instances of breach or default or breach that has not had and would not reasonably be reasonably likely expected to result have, individually or in the aggregate, a NAPW Material Adverse Effect on Effect. Each NAPW Material Contract is a valid and binding obligation of NAPW and, to the Companyknowledge of NAPW, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (a) Except as set forth in Section 5.14 3.19 of the Company Issuer Disclosure Schedule lists each of or filed in Issuer’s periodic reports filed with the following ContractsSEC and publicly available at least two Business Days prior to the date hereof, whether written or oral, to which the Company or neither Issuer nor any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or (A) relating to the Company employment of, or the performance of services by, any director, employee or consultant, (B) the terms of which obligate or may in the future obligate Issuer or any of its Subsidiaries to make any severance, termination or similar payment to any current or former employee, (C) pursuant to which Issuer or any of more than $200,000 in the aggregate its Subsidiaries may be obligated to make any bonus or similar payment to any current or former employee or director or (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)D) that is a Collective Bargaining Agreement;
(ii) any Contract relating to any partnership, joint venture, strategic alliance, collaboration, material sales agency, sales representation, distributorship research and development project or franchise agreementother similar arrangement;
(iii) any Contract or series of related Contracts involving payments by or (excluding licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms) pursuant to the Company which Issuer or any of its Subsidiaries of more than $50,000 in (A) obtains the aggregate that requires consent of or notice right to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit underuse, or triggering a price adjustment, right of renegotiation or other remedy covenant not to be sued under, any such agreementIntellectual Property Right or (B) grants the right to use, in each case that would reasonably or a covenant not to be expected to have a Material Adverse Effect on the Companysued under, any Intellectual Property Right;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;any Contract with any Governmental Authority;
(v) any Contract restricting the payment with sole-source or single-source suppliers of dividends material tangible products or the repurchase services or pursuant to which either Issuer or any of stock its Subsidiaries has agreed to purchase a minimum quantity of goods relating to any product or other equityproduct candidate or has agreed to purchase goods relating to any product or product candidate exclusively from a certain party;
(vi) any collective bargaining agreementsContract (A) that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of any Product or (B) that otherwise provides for the purchase or sale of products or services by Issuer or any of its Subsidiaries in excess of $100,000;
(vii) any material joint venturestockholders, profit sharinginvestors rights, partnership agreements registration rights, tax receivables or other similar agreementsor related Contract or arrangement;
(viii) any Contracts Contract containing “most favored nation” or series similar preferential pricing provisions, any exclusive dealing arrangement or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right;
(ix) any Contract (A) that obligates Issuer (together with its Subsidiaries) to make aggregate payments in excess of (x) $100,000 in the current or any future calendar year or (y) $250,000 in the aggregate, (B) related Contracts relating to the an acquisition or divestiture that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations) or (C) pursuant to which Issuer or any of its Subsidiaries has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of Issuer or any of its Subsidiaries or any other material contingent payment obligations, in each case that is not terminable by Issuer or its Subsidiaries without penalty without more than 60 days’ notice;
(x) any Lease, except as identified on Section 3.14(b) of the Issuer Disclosure Schedule;
(xi) any Contract that provides for indemnification of any current or former officer, director or employee;
(xii) any Contract for the disposition of all or any significant portion of the assets or business of Issuer or any of its Subsidiaries or for the acquisition, directly or indirectly, of a material amount portion of the assets outside the ordinary course or business of business any other Person (in each case, whether by merger, sale of stock, sale of stock or assets or otherwise);
(ixxiii) all leases any Contract relating to indebtedness for borrowed money, any guarantees thereof or subleases for real the granting of Liens over the property or personal property involving annual expense in excess assets of $1,000 and not cancelable by the Company (without premium Issuer or penalty) within six monthsany of its Subsidiaries;
(xxiv) any Contract that relating to any loan or other extension of credit made by Issuer or any of its Subsidiaries;
(Axv) limits any Contract containing any provision or covenant limiting in any material respect the freedom ability of the Company Issuer or any of its Subsidiaries to (A) sell any products or services of or to any other Person or in any geographic region, (B) engage or compete in any line of business or (C) compete with or to obtain products or services from any Person, or limiting the ability of any Person to provide products or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company services to Issuer or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries;
(xixvi) agreements by the Company any Contract requiring Issuer, or any of its Subsidiaries not successor thereto or acquirer thereof, to acquire assets make any payment whether severance or securities otherwise to another Person related to, in connection with, or as a result of a third party change of control of Issuer (including standstill agreementsa “Change of Control Payment”) or agreements by that gives a third party not Third Party a right to acquire assets receive or securities elect to receive a Change of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;Control Payment; or
(xiixvii) any “material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K K) or any other Contract that is material to Issuer and its Subsidiaries, taken as a whole (all Contracts of the SECtype described in this Section 3.19(a) being referred to herein as “Material Contracts”).
(b) The Company Issuer has made available to Purchaser prior to the date of this Agreement delivered or Made Available to Parent hereof a true, correct and complete and accurate copies copy of each Company Material Contract listed, or required to be listed, in Section 5.14 Contract.
(i) Each of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesis valid, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or (ii) neither Issuer nor any of its Subsidiaries. Neither , nor, to Issuer’s Knowledge, any other party to a Material Contract, has breached or violated in any material respect any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or a default under the Company provisions of such Material Contract, and neither Issuer nor any of its Subsidiaries norhas received notice that it has breached, to the Knowledge of the Company, violated or defaulted in any other party thereto is in default or breach material respect under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Material Contracts. (a) Section 5.14 2.9(a) of the Company Seller Disclosure Schedule Letter lists each of the following Contracts, whether written or oral, to which the Company or Contracts that any of its Subsidiaries Transferred Entity is a party to or bound by which it is bound as of the date of this Agreement, except for this Agreement and any Contracts with no remaining obligations thereunder and, with respect to customer Contracts and supplier Contracts, except for purchase orders (each such Contract listed or required collectively, subject to be so listedclause (i) below, a and together with the IP License Agreements, the “Company Material ContractContracts”):
(i) any Contract relating to any incurrence, assumption or series guarantee of related Contracts for the purchase, receipt, lease or use Indebtedness in excess of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)1,000,000;
(ii) any material sales agencyContract relating to joint ventures, sales representationpartnerships, distributorship franchising, royalty payments or franchise agreementother similar agreements or arrangements and/or any Contract relating to ownership of or investments in any business or enterprise (other than, in each case, immaterial ancillary agreements relating to any of the foregoing);
(iii) any Contract or series of related Contracts involving payments by or Contracts, including any option agreement, relating to the Company acquisition or disposition of any business or division thereof, capital stock or other equity securities or assets of any other Person (whether by merger, consolidation or other business combination, sale of stock or other securities, sale of assets or otherwise), including any indemnification agreements or any of its Subsidiaries of more than $50,000 other Contracts containing outstanding indemnification rights or obligations in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or connection therewith (other remedy under, any such agreementthan, in each case that would reasonably be expected case, immaterial ancillary agreements relating to have a Material Adverse Effect on any of the Companyforegoing);
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness any Contract that contains: (A) most favored nation clauses; (B) non-competition obligations; or other instruments providing for (C) material exclusivity obligations or relating to the lending of money, whether as borrower, lender or guarantorsimilar material restrictions, in amounts greater than $25,000 in each case, binding on any Transferred Entity or the aggregateBusiness that is not terminable by such Transferred Entity upon notice of thirty (30) days or less;
(v) any Contract restricting the payment of dividends under which any Transferred Entity has made outstanding advances or the repurchase of stock or loans to any other equityPerson;
(vi) any collective bargaining agreementsContract restricting the ability of Seller or any of its Affiliates (including any Transferred Entity) to sell any capital stock or other equity securities or assets of any Transferred Entity;
(vii) any material joint venture, profit sharing, partnership agreements or Contract made by any Transferred Entity with a Governmental Authority (other similar agreementsthan any Contract entered into with any Governmental Authority in China that is acting as a commercial enterprise);
(viii) any Contracts Contract with a labor union, works council or series of related Contracts relating to the acquisition or disposition other organization representing employees of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)Transferred Entity;
(ix) all leases or subleases for real or personal property involving annual expense the top ten (10) customer Contracts (based on aggregate total sales in excess of $1,000 and not cancelable U.S. dollars by the Company Transferred Entities for the twelve (without premium or penalty) within six months12)-month period ended on the Balance Sheet Date);
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeReal Property Leases;
(xi) agreements the top ten (10) supplier Contracts (based on aggregate total purchases in U.S. dollars by the Company or any of its Subsidiaries not to acquire assets or securities of a third party Transferred Entities for the twelve (including standstill agreements) or agreements by a third party not to acquire assets or securities of 12)-month period ended on the Company or any of its Subsidiaries (including standstill agreementsBalance Sheet Date), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification involving a remaining commitment by the Company or any Transferred Entities to pay capital expenditures in excess of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business$1,000,000;
(xiii) any material Contracts employment Contract with any Business Employee that provides for annual base salary in excess of $200,000, any employment Contract with any Business Employee that is included within the definition of “Knowledge of Seller,” and any change of control, retention or severance Contracts (Aexclusive of any generally-applicable severance policy) officer or director of the Company or any of its Subsidiaries with (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) otherwise for the twelve-month periods ended November 30, 2009 and 2010; (Bbenefit of) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andBusiness Employee;
(xiv) any Contracts with consultants or independent contractors that provide services to the Business that provide for the payment of compensation, fees or payments in excess of $200,000 for any year, or that have a term of longer than one year or are not terminable within one year or less without any penalty;
(xv) any Contracts relating to staffing companies, temporary employment agencies or similar companies that provide services to the Business that provide for the payment of compensation, fees or payments in excess of $200,000 in any year;
(xvi) any non-competition, non-solicitation and confidentiality Contracts with any Business Employee whose current base salary exceeds $200,000 in any year or with any Business Employee that is included within the definition of “Knowledge of Seller;” and
(xvii) any other Contract required to be filed Contract, excluding customer or supplier Contracts, involving the expenditure of amounts in excess of $1,000,000 in any year that is not terminable by the Company pursuant to Item 601(a)(10Transferred Entities upon notice of thirty (30) of Regulation S-K of the SECdays or less.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent A true and complete and accurate copies copy of each Company Material Contract listedContract, or required including all amendments and supplements thereto, has been made available to be listedBuyers, except as set forth in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder2.9(b). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.
Appears in 2 contracts
Sources: Purchase Agreement (Silgan Holdings Inc), Purchase Agreement (WestRock Co)
Material Contracts. (a) Section 5.14 As of the date of this Agreement, neither the Company Disclosure Schedule lists each nor any of its Subsidiaries is a party to or bound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the following Contracts, whether written SEC) (other than any Company Benefit Plan);
(ii) any Contract with any of its directors or oral, to which officers (other than any Company Benefit Plan);
(iii) any Contract that (A) imposes any material restriction on the right or ability of the Company or any of its Subsidiaries is a party to compete with any other Person or by which it is bound as solicit any client or customer or (B) following the Closing will materially restrict the ability of the date of this Agreement (each such Contract listed Parent or required its Subsidiaries to be so listed, a “Company Material Contract”):compete or solicit;
(iiv) any material Contract with a customer that obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants;
(v) any Contract relating to Indebtedness (other than intercompany Indebtedness owed by the Company or series any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the Company) of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries having an outstanding principal amount in excess of more $50,000,000.00, other than $200,000 in the aggregate Credit Agreement and the Company Notes and related indentures;
(vi) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(vii) any Contract that provides for the acquisition or disposition, directly or indirectly, of any assets (other than Contracts involving payments to the Company entered into acquisitions or dispositions of sale in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)) or capital stock or other equity interests of any Person, and with any outstanding obligations as of the date of this Agreement, in each case with a value in excess of $10,000,000.00;
(viii) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(ix) all leases any Contract with an affiliate or subleases for real or personal property involving annual expense in excess other Person that would be required to be disclosed under Item 404(a) of $1,000 and not cancelable by Regulation S-K promulgated under the Company (without premium or penalty) within six monthsExchange Act;
(x) any Contract that (A) limits in with any material respect the freedom customer that is one of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time Top Customers or (B) contains with any material exclusivity, “most favored nation”, rights supplier that is one of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeTop Suppliers;
(xi) agreements by the Company or any of its Subsidiaries not Contract pursuant to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities purchased, licensed or obligations sold during the twelve months prior to the date hereof, goods or services that involved payment by or to the Company and its Subsidiaries in excess of any other Person, $40,000,000.00 during such period or that provides for payments in excess of such amount over the remaining term of such agreement (in each case entered into outside the ordinary course case, whether under a single agreement or a series of businessrelated agreements);
(xiiixii) any material Contracts with any Contract pursuant to which (A) officer or director of the Company or any of its Subsidiaries (grants to any third party any license, release, covenant not to ▇▇▇ or similar right with respect to any material Intellectual Property owned by the Company or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; or (B) record the Company or beneficial owner any of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇its Subsidiaries receives a license, release, covenant not to ▇▇▇ ▇▇▇) or “associates” similar right with respect to any material Intellectual Property owned by a third party (or members of any of their “immediate family”) (as such terms are respectively defined other than generally commercially available software in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerobject code form); and
(xivxiii) any material Contract or any other Contract required that contains “most favored nation” or similar covenant with respect to be filed by pricing terms or requires on-going reporting obligations of the Company pursuant and/or its Subsidiaries, in each case to Item 601(a)(10) which the Company or any of Regulation S-K its Subsidiaries is a party and any counterparty is a Governmental Entity (or the counterparty has represented in writing to the Company or any of its Subsidiaries that it is a prime contractor or subcontractor to a Governmental Entity). All contracts of the SECtypes referred to in clauses (i) through (xiii) above are referred to herein as “Company Material Contracts.”
(b) The Neither the Company nor any Subsidiary of the Company is in breach of or default in any respect under the terms of any Company Material Contract and, to the knowledge of the Company, as of the date hereof, no other party to any Company Material Contract is in breach of or default in any respect under the terms of any Company Material Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, prior to the date hereof through the action or inaction of this Agreement delivered any third party, that with notice or Made Available to Parent complete and accurate copies the lapse of each time or both would constitute a breach of or default or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any benefit under the terms of any Company Material Contract listed, or required to be listedContract, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (each case except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect as has not had and or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Effect. Each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto, and no written notice (ii) is in full force and effect, subject to terminate and no written notice of an intent to terminatethe Enforceability Exceptions, in whole each case except as has not had or partwould not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There are no disputes pending or, to the Company’s knowledge, threatened with respect to any Company Material Contract has been received by the Company or any of its Subsidiaries. Neither Contract, and neither the Company nor any of its Subsidiaries nor, to the Knowledge has received any written notice of the Company, intention of any other party thereto is in default to a Company Material Contract to terminate for default, convenience or breach under the terms of otherwise any Company Material Contract Contract, nor to the Company’s knowledge, is any such party threatening to do so, in each case except for such instances of default as has not had or breach that would not reasonably be reasonably likely expected to result have, individually or in the aggregate, a Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Merger Agreement (Valspar Corp), Merger Agreement (Sherwin Williams Co)
Material Contracts. (a) Section 5.14 of Other than those set forth on Schedule 3.12, neither the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or nor any of its Subsidiaries Subsidiary is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease (whether of real or series personal property) providing for annual rentals of related Contracts $100,000 or more;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing or for the license of any Intellectual Property Rights for either (A) annual payments by or to the Company or any of its and the Subsidiaries of $500,000 or more than $200,000 in the or (B) aggregate (other than Contracts involving payments to by the Company entered into in and the ordinary course Subsidiaries of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship $500,000 or franchise agreementmore;
(iii) any Contract sales, distribution, licensing or series of related Contracts involving payments other similar agreement providing for the sale by or to the Company or any Subsidiary of its materials, supplies, goods, services, equipment, Intellectual Property Rights or other assets that provides for either (A) annual payments to the Company and the Subsidiaries of $500,000 or more than $50,000 in the or (B) aggregate that requires consent of or notice to a third party in the event of or with respect payments to the Merger in order to avoid a breach Company and the Subsidiaries of $500,000 or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatearrangement;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixvi) all leases any agreement relating to indebtedness for borrowed money or subleases for real the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or personal property involving annual expense in excess secured by any asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than 30 days’ notice without the payment of $1,000 any penalty and not cancelable (B) entered into subsequent to the date of this Agreement as permitted by the Company (without premium or penalty) within six monthsSection 5.01(h);
(xvii) any Contract franchise or similar agreement;
(viii) any agency, dealer, sales representative, marketing or other similar agreement;
(ix) any agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Subsidiary to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates Subsidiary after the Effective Time or Closing Date;
(Bx) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company agreement with (A) any Seller or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.Affiliates,
Appears in 2 contracts
Material Contracts. (a) Except for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 5.14 3.21 of the Company Disclosure Schedule lists each Schedules, as of the following Contractsdate of this Agreement, whether written neither the Company nor any of its Subsidiaries is a party to or oral, expressly bound by any Contract (excluding any Company Benefit Plan) that:
(i) would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) is a Company Real Property Lease pursuant to which the Company or any of its Subsidiaries leases real property that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) contains restrictions on the right of the Company or any of its Subsidiaries to engage in activities competitive with any Person or to solicit customers or suppliers anywhere in the world, other than restrictions (A) pursuant to limitations on the use by the Company or its Subsidiaries of rail lines set forth in the agreements conveying those lines or granting rights to operate them, (B) that are part of the terms and conditions of any “requirements” or similar agreement under which the Company or any of its Subsidiaries has agreed to procure goods or services exclusively from any Person, or (C) that are not material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(v) provides for the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement with a third party;
(vi) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $50 million;
(vii) is a party settlement, conciliation or by which it is bound as similar Contract that would require the Company or any of its Subsidiaries to pay consideration of more than $20 million after the date of this Agreement (each such Contract listed or required to be so listed, a “that contains material restrictions on the business and operations of the Company Material Contract”):or any of its Subsidiaries;
(iviii) any Contract or series of related Contracts provides for the purchase, receipt, lease acquisition or use of materials, supplies, goods, services, equipment or other assets involving future payments disposition by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise), or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the Company of future payments in excess of $25 million;
(ix) all leases is an acquisition agreement that contains material “earn-out” or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsother material contingent payment obligations;
(x) obligates the Company or any Contract that Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $50 million;
(Axi) provides for the procurement of services or supplies from a Company Top Supplier by the Company or any of its Subsidiaries, or provides for sales to a Company Top Customer by the Company or any of its Subsidiaries;
(xii) limits in any material respect or restricts the freedom ability of the Company or any of its Subsidiaries to engage declare or compete pay dividends or make distributions in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any respect of their respective Affiliates after capital stock, partner interests, membership interests or other equity interests;
(xiii) other than any sales and marketing Contracts entered into the Effective Time or (B) contains any material exclusivityOrdinary Course of Business, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on is a Contract pursuant to which the Company or any of its Subsidiaries is a party, or that would be binding on Parent is otherwise bound, and the contracting counterparty of which (A) is a Governmental Entity or (B) to the Knowledge of the Company, has entered into such Contract in its Affiliates after capacity as a prime contractor or other subcontractor of any Contract with a Governmental Entity and such Contract imposes upon the Effective Time;Company obligations or other liabilities due to such Governmental Entity; or
(xixiv) agreements by is a Contract pursuant to which (A) the Company or any of its Subsidiaries not is granted any license or other right with respect to acquire assets or securities Intellectual Property of a third party (including standstill agreements) or agreements by a third party not another Person, where such Contract is material to acquire assets or securities the business of the Company or any of its Subsidiaries (including standstill agreementsother than non-exclusive licenses for unmodified, commercially available “off-the-shelf” software that have been granted on standardized, generally available terms), in each case entered into outside the ordinary course of business;
; or (xiiB) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of grants to another Person any Person license or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) right with respect to any material Contracts with any (A) officer or director Company Intellectual Property. Each Contract of the Company or any of its Subsidiaries type described in clauses (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiariesi) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
– (xiv) any other Contract required of this Section 3.21(a) is referred to be filed by the herein as a “Company pursuant to Item 601(a)(10) of Regulation S-K of the SECMaterial Contract.”
(b) The True, correct and complete copies of each Company has Material Contract have been publicly filed with the SEC prior to the date of this Agreement delivered or Made Available otherwise made available to Parent complete and accurate copies Parent. Neither the Company nor any Subsidiary of each the Company is in breach of or default under the terms of any Company Material Contract listedwhere such breach or default would reasonably be expected to have, individually or required to be listedin the aggregate, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the a Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to Adverse Effect. To the Knowledge of the Company are binding obligations Company, as of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement Agreement, no other party to any Company Material Contract is in accordance with their terms)breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, except where individually or in the failure to be valid and binding and in full force and effect has not had and aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect, as of the Companydate of this Agreement, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any each Company Material Contract has been received by is a valid and binding obligation of the Company or any the Subsidiary of its Subsidiaries. Neither the Company nor any of its Subsidiaries northat is party thereto and, to the Knowledge of the Company, any of each other party thereto thereto, and is in default or breach under full force and effect, subject to the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyEnforceability Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Material Contracts. (a) Section 5.14 of Neither the Company Disclosure Schedule lists each of the following Contracts, whether written or oral, to which the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement any (each such Contract listed whether written or required to be so listed, a “Company Material Contract”oral):
(ia) employment, severance or non-competition agreements with Company Employees;
(b) operating lease, whether as lessor or lessee, with respect to any Contract real property;
(c) contract, whether as licensor or series of related Contracts licensee, for the purchaselicense of any patent, receiptknow-how, lease or use of materialstrademark, suppliestrade name, goodsservice ▇▇▇▇, servicescopyright, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate intangible asset (other than Contracts involving payments to the Company entered into in the ordinary course non-negotiated licenses of business, including investment banking contractscommercially available computer software);
(iid) loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which any material sales agencymoney has been borrowed or loaned, sales representationwhich has not yet been repaid, distributorship or franchise agreementany note, bond, or other evidence of indebtedness has been issued and remains outstanding;
(iiie) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofmortgage, a loss of benefit undersecurity agreement, conditional sales contract, capital lease, or triggering similar agreement that effectively creates a price adjustment, right of renegotiation or other remedy under, lien on any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreementsother than any conditional sales contract, capital lease, or similar agreement that creates a lien only on tangible personal property), in each case entered into outside the ordinary course of business;
(xiif) any material Contract providing for the indemnification by contract restricting the Company or any of its Subsidiaries in any material respect from engaging in business or from competing with any other parties;
(g) plan of reorganization;
(h) partnership or joint venture agreement;
(i) collective bargaining agreement or agreement with any Person labor union or under which association representing the Company or Employees;
(j) contracts and other agreements for the sale of any of its Subsidiaries has guaranteed material assets or properties or for the grant to any liabilities or obligations person of any preferential rights to purchase any of its assets or properties other Person, than in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer , except for contracts or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company agreements pursuant to Item 601(a)(10) of Regulation S-K of which the SEC.
(b) The Company sale or purchase has prior to the date of this Agreement delivered or Made Available to Parent complete been completed and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts there are valid and binding no material obligations of the Company and its Subsidiariesremaining;
(k) material warehousing, and to the Knowledge of the Company are binding obligations of the other parties theretodistributorship, and are in full force and effect (except those which are cancelledrepresentative, rescinded marketing, sales agency or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Company.advertising agreements; or
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Material Contracts. (ai) Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company Reports as of the date of this Agreement, any Benefit Plan, or as set forth in Section 5.14 5.1(k)(i) of the Company Disclosure Schedule lists each Schedule, as of the following Contractsdate of this Agreement, whether written neither the Company nor any of its Subsidiaries is a party to or oralbound by any Contract (a Contract described by clauses (A) through (M) of this Section 5.1(k)(i), including Contracts and all amendments and modifications thereto filed or required to be filed as exhibits to the Company Reports, being hereinafter referred to as a “Material Contract”):
(A) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(B) that contains any (x) noncompete or exclusivity provisions to which the Company or any of its Subsidiaries is subject that would, after the Effective Time, materially restrict the ability of Parent or any of its Subsidiaries (other than the Company or any of its Subsidiaries) to compete in any line of business or geographic area, (y) most favored customer pricing or any other similar pricing restrictions in favor of a party or by which it is bound as customer of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 who, in the aggregate year ended December 31, 2021, was one of the ten (other than Contracts involving payments to 10) largest sources of revenues for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders entered into in the ordinary course of business, including investment banking contracts);
(iiC) any that provides for a material sales agencypartnership, sales representationjoint venture, distributorship collaboration or franchise agreementsimilar material arrangement;
(iiiD) that is (x) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing Indebtedness of any Person in excess of $5 million except for any Contract solely among or series of related Contracts involving payments by or to between the Company or and any of its wholly owned Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of(y) hedging, a loss of benefit underderivative, or triggering a price adjustment, right of renegotiation swaps or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companysimilar Contract;
(ivE) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating that relates to the acquisition or disposition of a material amount of any Person, business, assets outside the ordinary course of business or real property (in each case, whether by merger, sale of stock, sale of assets or otherwise) and includes a minimum purchase, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries;
(F) that is a Real Property Lease for a property with square footage in excess of 100,000 square feet;
(G) that is a settlement agreement that (x) requires payment by the Company or any of its Subsidiaries after the date hereof in excess of $1 million or (y) imposes non-monetary obligations or restrictions on the Company or any of its Subsidiaries after the date of this Agreement which obligations or restrictions would apply to Parent or its Affiliates (including the Company and its Subsidiaries) following the Closing;
(H) relating to the pending acquisition or disposition of any Person, business, assets or real property (whether by merger, sale of stock, sale of assets or otherwise) having an aggregate purchase price in excess of $25 million;
(I) relating to (x) the licensing of Intellectual Property Rights by the Company (whether as licensee or licensor) that is material to the Company and its Subsidiaries, taken as a whole or (y) the development of any material Intellectual Property Rights owned or used by the Company (in each case, excluding (1) non-exclusive licenses for unmodified, commercial off the shelf computer software, (2) non-exclusive licenses entered into in the ordinary course of business, and (3) agreements with employees or independent contractors on the Company’s standard form of agreement);
(ixJ) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) with any Contract that (A) limits in any material respect the freedom customer of the Company or any of its Subsidiaries to engage who, in the year ended December 31, 2021 was one of the ten (10) largest sources of revenues for the Company and its Subsidiaries, based on amounts paid or compete payable (excluding any purchase orders entered into in any line the ordinary course of business or business); or
(K) with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities vendor of the Company or any of its Subsidiaries (including standstill agreements)who, in each case the year ended December 31, 2021, was one of the ten (10) largest sources of payment obligations for the Company and its Subsidiaries, based on amounts paid or payable (excluding any purchase orders entered into outside in the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC).
(bii) The Company has made available to Parent prior to the date of this Agreement delivered or Made Available to Parent accurate and complete and accurate copies of each Company all written Material Contract listed, or Contracts required to be listed, identified in Section 5.14 5.1(k)(i) of the Company Disclosure Schedule (Schedule, including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties amendments thereto, and are as in full force and effect (except those which are cancelled, rescinded or terminated after as of the date of this Agreement in accordance with their terms)Agreement.
(iii) As of the date of this Agreement, except where the failure to be valid and binding and in full force and effect as has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any each Material Contract has been received by is a valid and binding agreement of the Company or any of its Subsidiaries. Neither Subsidiaries party thereto, enforceable against the Company nor or any of its Subsidiaries norand, to the Knowledge of the Company, any each other party thereto in accordance with its terms, and is in full force and effect, subject in each case to the Bankruptcy and Equity Exception (and subject to the termination or expiration of any such Material Contract after the date of this Agreement in accordance with its terms). Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of its Subsidiaries, and, to the Knowledge of the Company, as of the date of this Agreement, no other party thereto, is (or with or without notice or lapse of time would be) in default or breach under the terms of any Company such Material Contract except for and no event has occurred (with respect to defaults or breaches by any other party thereto, to the Knowledge of the Company, as of the date of this Agreement) that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such instances a violation or breach, (B) give any Person the right to accelerate the maturity or performance of default any Material Contract or breach that would not be reasonably likely (C) give any Person the right to result cancel, terminate or modify in a manner adverse to the Company any Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule lists Seller has provided to Buyer each of the following ContractsContracts to which, whether written or oralas of the date of this Agreement, to which the Company or any of its Subsidiaries Subsidiaries, if any, is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedeach, a “Company Material Contract”):
(i) any each Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect not to (or otherwise restricting or limiting the freedom ability of the Company or any of its Subsidiaries to engage or Subsidiaries, if any, to) compete in any line of business or with any Person or in any geographic area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights to restrict the ability of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries, if any, to conduct business in any geographic area;
(xiii) agreements each Contract (other than any benefit plans of the Company) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries not that exceed $50,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire assets any material Company Assets;
(iv) all material contracts for the granting or securities receiving of a third party license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (including standstill 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 that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $100,000;
(vii) any agreement for the disposition or agreements acquisition by a third party not to acquire assets the Company or securities any of its Subsidiaries, if any, with material obligations of the Company or any of its Subsidiaries Subsidiaries, if any, (including standstill agreements)other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any material business or any material amount of assets other than in each case entered into outside the ordinary course of business;
(xiiviii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts agreement with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees top 10 customers of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 if any, taken as a whole, as applicable, and 2010; (B) record or beneficial owner of five percent or more the top 10 suppliers of the voting securities Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2023 fiscal year measured by the aggregate obligations paid or agreed to pay to or by the Company, as applicable;
(ix) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations as are required by applicable Law;
(x) any Contract for the development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company; or (C) affiliate (as ’s standard form for such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerContracts; and
(xivxi) any other Contract required to be filed by the Company extent not provided pursuant to Item 601(a)(10) another subsection of Regulation S-K of the SECthis Section 3.12(a), all material agreements with any Governmental Authority.
(b) The A true and complete copy of each Company has Material Contract (including any amendments thereto) entered into prior to the date of this Agreement delivered or Made Available has been made available to Parent complete and accurate copies of each Company Material Contract listed, or required Buyer prior to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms)Agreement. Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its SubsidiariesEffect. Neither the Company nor any of its Subsidiaries or such Subsidiary nor, to the Knowledge of the Company, any other party thereto thereto, is in breach of or default or breach under any such Company Material Contract. As of the terms date of this Agreement, there are no material disputes in connection with any such Company Material Contract. As of the date of this Agreement, no party under any Company Material Contract except for has given written notice of its intent to terminate or otherwise seek a material amendment to such instances of default or breach that would not be reasonably likely to result in a Company Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Share Purchase Agreement (Connexa Sports Technologies Inc.), Share Exchange Agreement (Connexa Sports Technologies Inc.)
Material Contracts. (a) Section 5.14 3.11 of the Company Seller Disclosure Schedule lists each contains a list of the following Contractsall Contracts referred to in clauses (i) through (xv), whether written or oralinclusive, of this Section 3.11(a) to which the Company or any of its Subsidiaries is a party or by and which it is bound as of the date of this Agreement currently in effect (each such Contract listed or required to be so listeddisclosed hereunder, a “Company Material Contract” and, collectively, the “Material Contracts”):), complete and accurate copies of which have been made available to Buyer:
(i) any Contract lease (whether of real or series personal property) providing for annual rentals of related Contracts $25,000 or more;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, development, equipment or other assets involving future providing for annual payments by or to the Company of $25,000 or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreementmore;
(iii) any Contract sales, partnering, development or series other similar agreement providing for the sale by the Company of related products, services or other assets (other than Contracts involving with the Company’s customers that are not required to be disclosed pursuant to Section 3.11(c)) that provides for either (A) annual payments by or to the Company of $25,000 or any of its Subsidiaries of more than $50,000 in the or (B) aggregate that requires consent of or notice to a third party in the event of or with respect payments to the Merger in order to avoid a breach Company of $25,000 or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating arrangement, other than referral agreements pursuant to which the lending of moneyCompany has not made any referral payments since July 31, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate2009;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise), other than the acquisition or disposition of inventory;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $25,000 and which may be prepaid on not more than thirty (30) calendar days’ notice without the payment of any penalty;
(vii) any (A) option, franchise or similar agreement, (B) inbound license of Intellectual Property Rights or Technology to the Company other than Off-the-Shelf Software or (C) outbound license of Intellectual Property Rights, Company Software or other Company Intellectual Property or sublicense of Licensed Intellectual Property by the Company, other than any non-exclusive outbound license of Company Software entered into in the ordinary course of business consistent with past practice;
(viii) any agency, dealer, sales representative, distribution, marketing or other similar agreement involving $25,000 or more (which, in the case of referral agreements shall only include referral agreements pursuant to which payments received by the Company or paid by the Company for referral fees are equal to $25,000 or more), other than instances wherein an employee of the Company acts as a sales representative;
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with against any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time Closing Date or (B) contains any material exclusivity, provides for pricing or other contract terms on a “most favored nation”, rights of first refusal, rights of first negotiation nations” or similar obligations basis;
(x) any agreement with (A) any Seller or restrictions that the Company, (B) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of the Company, (C) any Person 5% or more of whose outstanding voting securities are binding on directly or indirectly owned, controlled or held with power to vote by any Seller or the Company or (D) any of its Subsidiaries director or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities officer of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their the “immediate family”) ” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇Exchange Act) of any such officer, director or beneficial owner; andofficer;
(xi) any indemnification agreements, other than in connection with commercial transactions or indemnification provisions in outbound licenses, in each case in the ordinary course of business;
(xii) any contract with a Governmental Authority;
(xiii) powers of attorney from the Company;
(xiv) confidentiality and non-disclosure agreements (whether the Company is the beneficiary or the obligated party thereunder), other than those related to commercial transactions in the ordinary course of business consistent with past practice; or
(xv) any other Contract required not made in the ordinary course of business that is material to be filed by the Company pursuant to Item 601(a)(10) involving payment over the life of Regulation S-K such Contract in excess of the SEC$50,000.
(bi) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Material Contract listed, or required to be listed, in Section 5.14 is a valid and binding agreement of the Company Disclosure Schedule except as limited by (including all amendmentsA) bankruptcy, modificationsinsolvency, extensions fraudulent conveyance, reorganization, moratorium or similar Applicable Laws affecting the enforcement of creditors’ rights and renewals thereto and waivers thereunder). All (B) general rules of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesequity, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect effect, (except those which are cancelled, rescinded or terminated after the date ii) none of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries noror, to the Knowledge of the Company, any other party thereto thereto, is in default or breach in any material respect under the terms of any Company such Material Contract except for such instances and (iii) to the Knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default under any Material Contract. Complete and accurate copies of each Material Contract have been made available to Buyer.
(c) Schedule 3.11(c) sets forth the names of each customer of the Company that represents greater than 1.0% of the revenues of the Company during the year ended December 31, 2010 and during the seven-months ended July 31, 2011. Since December 31, 2010, none of the customers listed in Schedule 3.11(c) has notified the Company in writing that it is canceling, materially reducing or breach otherwise terminating its business with the Company or that would not be reasonably likely it intends to result in a Material Adverse Effect on cancel, reduce or otherwise terminate its relationship with the Company. All agreements between the Company and each such customer set forth in Schedule 3.11(c) shall, for all purposes pursuant to this Agreement, be deemed to be a “Material Contract.”
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Ellie Mae Inc)
Material Contracts. (a) Section 5.14 3.14(a) of the Company Disclosure Schedule lists each Letter sets forth, as of the following Contractsdate of this Agreement, whether written or orala true, correct and complete list of each Contract to which the Company or any of its Subsidiaries is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) a Contract pursuant to which the Company or any of its Subsidiaries (A) has purchased or sold during the twelve (12) months prior to the date of this Agreement goods or services that involved payments by or to the Company and its Subsidiaries in excess of $500,000 during such period, in each case other than purchase orders entered into in the Ordinary Course, or (B) would reasonably be expected to (x) make or receive annual payments of more than $500,000 or (y) make or receive aggregate payments of more than $1,000,000;
(iii) a Contract that is a license, royalty, covenant not to ▇▇▇ or similar Contract with respect to Intellectual Property (other than licenses for shrinkwrap, clickwrap, or other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the Company or any of its Subsidiaries);
(iv) a joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company in which it is bound the Company owns, directly or indirectly, any voting or economic interest of 10% or more, or any interest valued at more than $500,000, without regard to percentage voting or economic interest, other than any such Contract solely between the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries;
(v) a mortgage, indenture, guarantee, loan, or credit agreement, security agreement, or other Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case with an outstanding principal balance as of the date of this Agreement in excess of $500,000, other than (each such Contract listed or required to be so listed, a “Company Material Contract”):
A) accounts receivable and accounts payable in the Ordinary Course and (iB) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments intercompany loans owed by or to the Company or any direct or indirect wholly-owned Subsidiary of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in to any other direct or indirect wholly-owned Subsidiary of the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit underCompany, or triggering a price adjustment, right of renegotiation by any direct or other remedy under, any such agreement, in each case that would reasonably be expected indirect wholly-owned Subsidiary to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to a Contract that provides for the acquisition or disposition of a material amount any assets (other than acquisitions or dispositions of assets outside inventory in the ordinary course Ordinary Course) or business or shares or capital stock or other equity interests of business any Person (in each case, whether by merger, sale shares or of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries , pursuant to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities liability, including any potential indemnity or earn-out or other deferred or contingent payment obligations of any other Person, in each case entered into outside the ordinary course of businessthat remain outstanding;
(xiiivii) any material Contracts with any (A) officer or director a Contract containing a covenant that materially limits the right of the Company or any of its Subsidiaries (or after the Effective Time, Parent or its Affiliates) to engage or compete in any other employee who is one line of business, solicit or hire any Person, or purchase, sell, supply or distribute any product or service, or that otherwise has the twenty effect of restricting the Company or any of its Subsidiaries (or after the Effective Time, Parent or its Affiliates) from the development, manufacture, marketing or distribution of products or services in any geographic area;
(viii) a Contract that grants any exclusivity rights or “most highly compensated employees favored nation” status (including any that, after the Effective Time, would bind Parent or its Affiliates);
(ix) a Contract with the Top Customers or Top Suppliers;
(x) a Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company and or its SubsidiariesSubsidiaries (or after the Effective Time, Parent or its Affiliates) for the twelve-month periods ended November 30to own, 2009 and 2010; operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(Bxi) record a Contract containing a standstill or beneficial owner of five percent similar agreement pursuant to which one party has agreed not to acquire assets or more securities of the voting securities other party or its Affiliates;
(xii) a Contract that contains a put, call or similar right pursuant to which the Company or any of Company; its Subsidiaries would reasonably likely be required to purchase or (C) affiliate (sell, as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members applicable, any equity interests of any Person or assets that have a fair market value or purchase price of their “immediate family”more than $250,000;
(xiii) (as such terms are respectively defined in Rule 12b-2 a Contract between the Company or any of its Subsidiaries and Rule 16a-1 any director or officer of the ▇▇▇▇ ▇▇▇) Company, any Person holding more than 5% of any such officerthe capital stock of the Company, director or beneficial ownertheir immediately family members; andor
(xiv) any other a Contract required to be filed by which the Company pursuant or any of its Subsidiaries is a party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to Item 601(a)(10any such contract). Each Contract of the type described in this Section 3.14(a) whether or not set forth in Section 3.14(a) of Regulation S-K of the SEC.
(b) The Company has Disclosure Letter and whether or not entered into on or prior to the date of this Agreement delivered or Made Available Agreement, is referred to Parent herein as a “Company Material Contract.”
(b) A true, complete and accurate copies correct copy of each Company Material Contract listed, or required has been made available to be listed, in Section 5.14 of Parent prior to the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder)date hereof. All of the Each Company Material Contracts are valid and binding obligations of the Company and its SubsidiariesContract is valid, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has with respect to the Company and any of its Subsidiaries to the extent a party thereto and, to the Knowledge of the Company, each other party thereto. To the Knowledge of the Company, no Person is seeking to terminate or challenging the validity or enforceability of any Company Material Contract, except such terminations or challenges which have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its SubsidiariesEffect. Neither the Company nor any of its Subsidiaries norSubsidiaries, nor to the Knowledge of the Company, any of the other party parties thereto is in has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a default under any provision of, and neither the Company nor any of its Subsidiaries has received written notice that it has violated or breach under the terms of defaulted under, any Company Material Contract Contract, except for such instances of default those violations and defaults (or breach that potential defaults) which have not had and would not reasonably be reasonably likely expected to result have, individually or in the aggregate, a Company Material Adverse Effect on the Company.Effect,
Appears in 2 contracts
Sources: Merger Agreement (Yatra Online, Inc.), Merger Agreement (Ebix Inc)
Material Contracts. (a) Section 5.14 3.22(a) of the Company Disclosure Schedule lists each Letter contains a true, complete and correct list of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed any property or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom asset of the Company or any of its Subsidiaries to engage is bound, in each case as of the date of this Agreement, other than Company Plans and Company Real Property Leases listed on Section 3.15(b) of the Company Letter (collectively, the “Material Contracts”):
(i) each Contract (A) the terms of which obligate or compete may in any line of business or with any Person or in any area or which would so limit the freedom of Parent, future obligate the Company or any of their respective Affiliates after its Subsidiaries to make any severance, termination or similar payment to any current or former legal representative of the Effective Time Company or any of its Subsidiaries, (B) contains pursuant to which the Company or any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation its Subsidiaries may be obligated to make any bonus or similar obligations payment to any current or restrictions former Company Service Provider in connection with the consummation of the transactions contemplated by this Agreement, or (C) that are binding on provides for indemnification of any current or former Company Service Provider;
(ii) each Contract with any Governmental Authority;
(iii) any Contract with sole-source or single-source suppliers of material tangible products or services or pursuant to which the Company or any of its Subsidiaries has agreed to purchase a minimum quantity of goods relating to any Company Product or has agreed to purchase goods relating to any Company Product exclusively from a certain party;
(iv) any stockholders’, investor rights, registration rights, tax receivables or similar or related Contract or arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(v) any Contract pursuant to which the Company or any of its Subsidiaries or that would be binding on Parent or any of its Affiliates (including, after the Effective Time;
(xi) agreements by the Company Closing, Buyer or any of its Subsidiaries not to acquire assets Affiliates) has continuing obligations or securities interests involving the payment of a third party (including standstill agreements) royalties or agreements by a third party not to acquire assets other amounts calculated based upon the revenues or securities income of the Company or any of its Subsidiaries (or any other material contingent payment obligations, including standstill agreements)any milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case entered into outside that is not terminable by the ordinary course of businessCompany or its Subsidiaries without penalty without more than thirty (30) days’ notice;
(xiivi) each Contract that limits the freedom of the Company, any material of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates), to compete or engage in any line of business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, its Subsidiaries or Affiliates (including, after the Closing, Buyer or any of its Affiliates), from the development, marketing or distribution of any products or services;
(vii) each Contract with any Person providing for a partnership, joint venture, limited liability company agreement, and each material collaboration, research and development arrangement, strategic alliance, co-marketing arrangement or similar profit sharing arrangement (other than any such agreement solely between or among the indemnification Company and its wholly owned Subsidiaries);
(viii) each Contract entered into since January 1, 2022: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction); or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any business, assets, ownership interest or make an investment (other than the Company or any of its Subsidiaries);
(ix) each Contract with respect to the acquisition or disposition of any Person (whether by merger, amalgamation, consolidation or under other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer or similar transaction) pursuant to which the Company or any of its Subsidiaries has guaranteed (A) material continuing representations, covenants or indemnification obligations (other than in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice in connection with the development, sale or licensing of Company Products), or (B) any liabilities “earn-out” or obligations of any other Personsimilar contingent payment obligations, in each case case, (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole, or (y) other than any Contract that provides solely for the acquisition or disposition of inventory, raw materials or equipment in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice;
(x) each Contract to which the Company or any of its Subsidiaries is a party which grants an exclusive right to Intellectual Property Rights (other than Contracts with respect to generally commercially available software and hardware and customer Contracts for the sale of Company Products to distributors or end-users of such Company Products entered into outside in the ordinary course of business);
(xi) each Contract that grants any right of first refusal, right of first offer, right of first negotiation or similar preferential right in favor of a Third Party or that limits the ability of the Company, any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(xii) each Contract (A) containing exclusivity obligations; (B) containing any “most favored nations” provisions granted by any of the Company, or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates); (C) pursuant to which any of the Company, or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) is obligated to purchase a minimum quantity of goods or services from another Person with a minimum contract value of not less than EUR 500,000 per contract, or (D) granting rights to any third party to, or otherwise restricting, the exploitation, sale, supply or license of any Company Product;
(xiii) any material Contracts with any other than instruments providing for indebtedness that would not, in the aggregate, exceed $1,000,000, each Contract that (A) officer is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or director other agreement providing for indebtedness (including obligations under any capitalized leases but excluding agreements between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company) or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(xiv) each Collective Bargaining Agreement;
(xv) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that (1) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (2) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted, or (B) that would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement;
(xvi) the top ten (10) Contracts measured by the aggregate payments made during the fiscal year ended December 31, 2024 with a customer of the Company or any Subsidiary of the Company, including distributors (excluding Contracts under which there are no further obligations of the Company or any Subsidiary of the Company to deliver products and purchase orders);
(xvii) any Contract (other than the type described in the subclauses above) that involves aggregate payments by or to the Company or any Subsidiary of the Company in excess of $5,000,000 per annum in the current calendar year or $5,000,000 in the aggregate; and
(xviii) each Contract not otherwise described in any other subsection of this Section 3.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K as promulgated by the SEC) with respect to the Company.
(b) A true, complete or redacted, as the case may be, and correct copy of each written Material Contract in effect as of the date of this Agreement, and a true, complete and correct summary of each oral Material Contract in effect as of the date of this Agreement, has been made available to Buyer prior to the date of this Agreement. Except for matters that would not, individually or in the aggregate, be or reasonably expected to be, material to the Company and its Subsidiaries, taken as a whole, (i) each Material Contract is a valid, binding and enforceable obligation of the Company or one of its Subsidiaries, on the one hand, and, to the knowledge of the Company, of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and each Material Contract is in full force and effect, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract and, to the knowledge of the Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract, (iii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract, has breached or violated in any material respect any provision of, or taken or failed to take any act which, with or without notice, lapse of time or both, would constitute a material breach or a default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received written or, to the knowledge of the Company, oral notice of any, and, to the knowledge of the Company, none of the Company or any of its Subsidiaries is in, default or material breach under (nor does there exist any condition which upon the passage of time or any other employee who is one the giving of the twenty most highly compensated employees of the Company and its Subsidiariesnotice or both would cause such a default or material breach under) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither and (iv) neither the Company nor any of its Subsidiaries norhas received any written or, to the Knowledge knowledge of the Company, oral notice from any other party thereto is in default or breach under the terms of to any Company such Material Contract except for that such instances of default party intends to terminate, or breach that would not be reasonably likely renew, any such Material Contract or to result adjust the fee schedule under such Material Contract in a Material Adverse Effect on the Companyany material respects.
Appears in 2 contracts
Sources: Purchase Agreement (BioNTech SE), Purchase Agreement (CureVac N.V.)
Material Contracts. (a) Except for this Agreement or as set forth on Section 5.14 3.09 of the Company Disclosure Schedule lists each of the following ContractsSchedule, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such any Contract listed whether written or required to be so listed, a “Company Material Contract”):oral:
(i) with any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)current Key Personnel;
(ii) with any material sales agency, sales representation, distributorship labor union or franchise agreement;
(iii) association representing any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom employee of the Company or any of its Subsidiaries to engage or compete and any collective bargaining agreement;
(iii) that is a “material contract” (as such term is defined in any line Item 601(b) (10) of business or with any Person or in any area or which would so limit Regulation S-K of the freedom of Parent, SEC not otherwise listed on the Company Disclosure Schedule);
(iv) that is a partnership or joint-venture agreement;
(v) relating to the borrowing of money (including any guarantee thereto) or that is a mortgage, security agreement, capital lease or similar agreements, in each case in excess of their respective Affiliates after the Effective Time $1 million or (B) contains that creates a Lien on any material exclusivity, “most favored nation”, rights asset of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries;
(xivi) agreements by that limits or purports to limit the ability of the Company or any of its Subsidiaries not Affiliates to acquire compete or engage in any line of business, in any geographic area or with any person, except for certain radius restrictions or use restrictions that may be contained in deeds, leases or similar agreements for individual restaurant locations that were granted in the ordinary course of business consistent with past practice;
(vii) for the license or sublicense of any Intellectual Property or other intangible asset (whether as a licensor or a licensee), that provides for payment of $250,000 or more per year;
(viii) constituting a franchise agreement or a franchise related development agreement;
(ix) relating to the sale of any of the assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities properties of the Company or any of its Subsidiaries (including standstill agreements), other than in each case entered into outside the ordinary course of businessbusiness or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties, except for rights of repurchase or recapture rights or rights of first refusal that may be contained in deeds, leases, or similar agreements for individual restaurant locations that were granted pursuant to, or in connection with, real estate Contracts entered into by the Company in the ordinary course of business consistent with past practice;
(xiix) any material Contract providing for relating to the indemnification acquisition by the Company or any of its Subsidiaries of any Person operating business or under which the capital stock of any other person;
(xi) requiring the payment to any person of a commission or fee, except in the ordinary course of business consistent with past practices;
(xii) with suppliers of any goods and services that provides for payment of $500,000 or more per year;
(xiii) relating to restaurant services, management, or similar agreement with total payments by the Company or any of its Subsidiaries has guaranteed any liabilities or obligations in excess of any other Person, in each case entered into outside the ordinary course of business$500,000 per year;
(xiiixiv) in the case of a Company Benefit Plan, that provides any material Contracts with benefits which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(Axv) that are insurance policies providing for indemnification of any officer or director of the Company or any of its Subsidiaries (or any Subsidiaries, other employee who is one of than the twenty most highly compensated employees Company Articles, Company Bylaws and other organizational documents, as currently in effect, of the Company and each of its Subsidiaries;
(xvi) that is an advertising or a marketing contract other than media contracts purchased in the ordinary course of business or that provides for payments in excess of $250,000 per year;
(xvii) that constitutes a Tip Rate Alternative Commitment Agreement (“TRAC Agreement”) with the twelve-month periods ended November 30Internal Revenue Service;
(xviii) other than those types of Contracts listed in clauses (i) to (xvii) above, 2009 and 2010; (B) record those that involve payments by the Company or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”) (as such terms its Subsidiaries in excess of $250,000 per year, in each case that are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director not terminable without premium or beneficial ownerpenalty on 90 days’ or less notice; and
(xivxix) that would prevent, materially delay or materially impede the consummation of any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECtransactions contemplated by this Agreement. All Contracts of the types described in this Section 3.09 shall be collectively referred to herein as the “Material Contracts.”
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 3.09 of the Company Disclosure Schedule (including sets forth a list of all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations as of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be Agreement. Each such Material Contract is valid and binding and in full force and effect and enforceable in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether considered in a proceeding in equity or at law). Neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any counterparty to any Material Contract, has violated or is alleged to have violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on the Company, Effect. True and no complete copies of all written notice Material Contracts have been delivered or made available to terminate Parent and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyMerger Sub.
Appears in 2 contracts
Sources: Merger Agreement (Darden Restaurants Inc), Merger Agreement (Rare Hospitality International Inc)
Material Contracts. (a) Section 5.14 As of the date of this Agreement, the Company Disclosure Schedule lists each and its Subsidiaries are not a party to or bound by any Contract:
(i) that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the following ContractsSEC;
(ii) that is or creates a Partnership with any other Person that is material to the Company and its Subsidiaries, whether written taken as a whole, or oralthat relates to the formation, operation, management or control of any such Partnership;
(iii) that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases) in excess of $1,500,000 (other than agreements between the Company and any wholly owned Subsidiary or between wholly owned Subsidiaries) or pursuant to which the Company or any of its Subsidiaries is guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary), (B) materially restricts the Company’s ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a party Lien (other than a Permitted Lien) or by which it is bound as restricts the granting of Liens on any property or asset of the date of this Agreement (each such Contract listed Company or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or any of its Subsidiaries of more than $200,000 in the aggregate (D) is an interest rate derivative, currency derivative or other hedging contract other than Contracts involving payments to the Company foreign currency cash flow ▇▇▇▇▇▇ entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companybusiness and classified as cash flow ▇▇▇▇▇▇ for accounting purposes;
(iv) promissory notesthat is a Contract (other than this Agreement) for the acquisition of any corporation, loanspartnership or limited liability company or business, agreements, indentures, evidences or sale of indebtedness any of its Subsidiaries or other instruments providing for or relating to businesses after the lending of money, whether as borrower, lender or guarantordate hereof, in amounts greater each case with a fair market value or purchase price (including assumption of debt) in excess of $5,000,000 (other than $25,000 (x) in the aggregateordinary course of business or (y) intercompany agreements);
(v) that is a Contract (including any Contract restricting providing for the payment outsourcing, contract manufacturing, testing, assembly or fabrication (as applicable of dividends any products, technology or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom services of the Company or any of its Subsidiaries)) under which the Company and its Subsidiaries to engage have made or compete received payments in any line excess of business or with any Person or $1,000,000 in any area or which would so limit the freedom of Parentfiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(vi) that is a dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for the Company Products (A) with a third party that is one of the Company’s top twenty (20) customers by revenue in fiscal year 2014 or any of their respective Affiliates after the Effective Time 2015 or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on under which the Company or any of and its Subsidiaries have made or that would be binding on Parent received payments in excess of $1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or its Affiliates after the Effective Timetwo quarter period ended June 27, 2015;
(xivii) agreements by with respect to the Company acquisition or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries disposition of any Person corporation, partnership, limited liability company or under business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of capital stock, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has guaranteed (A) material continuing indemnification obligations (and was entered into after March 1, 2005), or (B) any “earn-out” or similar contingent payment obligations in excess of $5,000,000 (other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course);
(viii) that contains a right of first refusal, first offer, or first negotiation, or a call or put right, with respect to any asset that is material to the Company and its Subsidiaries, taken as a whole;
(ix) that prohibits or restricts the payment of dividends or distributions in respect of the Company’s shares or capital stock;
(x) that is a purchase or sale agreement with any Significant Customer or Significant Supplier under which the Company and its Subsidiaries have made or received payments in excess of $1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(xi) under which (A) any person (other than the Company or any of its wholly owned Subsidiaries) is guaranteeing any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries, or (B) the Company or any of its Subsidiaries has “take-or-pay” obligations;
(xii) that is between the Company or any of its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ respective directors or officers or stockholders who own five percent (5%) or more of the Company Common Stock, other than (A) any Benefit Plan or any other employee who is one agreements or arrangements, (B) transactions conducted on an arms’ length basis or (C) any agreements with consideration of less than $200,000;
(xiii) providing for the creation or imposition of any Lien, other than a Permitted Lien, with respect to any assets (including Intellectual Property or other intangible assets) material to the conduct of the twenty most highly compensated employees business of the Company and its Subsidiaries) for the twelve-month periods ended November 30Subsidiaries as currently conducted, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (taken as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; anda whole;
(xiv) that is a settlement, conciliation or similar agreement (x) with any other Contract required to be filed by Governmental Entity which (A) materially restricts or imposes material obligations upon the Company pursuant to Item 601(a)(10or its Subsidiaries, or (B) of Regulation S-K materially disrupts the business of the SECCompany and its Subsidiaries as currently conducted, or (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $2,000,000 after the date of this Agreement; or
(xv) with any Governmental Entity, or for the purpose of fulfilling a Contract or order from any Governmental Entity as the ultimate customer, that is material to the conduct of the business of the Company and its Subsidiaries as currently conducted, taken as a whole. Each such Contract described in clauses (i)-(xv) or Section 4.8(c), together with each material Company License-In Agreement, is referred to herein as a “Material Contract”.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any (i) each Material Contract has been received by is enforceable against the Company or any of in accordance with its Subsidiaries. Neither the Company nor any of its Subsidiaries norterms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and (ii) the Company or its Subsidiaries, on the one hand, and, to the Knowledge of the Company, each other party to each Material Contract, on the other hand, have performed all obligations required to be performed by it under such Material Contract and, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract, or (C) give any Person the right to cancel, terminate or modify any Material Contract.
(c) As of the date of this Agreement, the Company is not a party to or bound by any Contract that (i) contains any provisions materially restricting the right of the Company or any of its Subsidiaries (A) to compete or transact in any business or with any Person or in any geographic area, or (B) to acquire any material product or other asset or service from any other party thereto is in default Person; (ii) grants exclusive rights to license, market, sell or breach under the terms of deliver any Company Material Contract Product; or (iii) contains any “most favored nation” or similar provisions in favor of the other party and relates (or would reasonably be expected to relate) to payments in excess of $1,000,000 in any of fiscal years 2014, 2015 or 2016.
(d) (x) There are no licenses granted to third parties under any of the Contracts set forth in Section 4.8(d)(i), Section 4.8(d)(ii) or Section 4.8(d)(iii) of the Company Disclosure Schedule (collectively, the “Specified Contracts”), and (y) to the Knowledge of the Company, there are no other Contracts to which the Company or its Subsidiaries is a party, in the case of clause (x) or (y), that would, as a result of the change of control of the Company contemplated by this Agreement, the Closing or the fact of Parent or any of its Affiliates (other than the Company or its Subsidiaries) becoming an Affiliate of the Company or any of its Subsidiaries, grant to any third party a license or right to a license with respect to Parent’s or its Affiliates’ (excluding the Company and its Subsidiaries) Intellectual Property following the Closing, in each case except for such instances of default or breach that as would not be reasonably likely to result in a Material Adverse Effect on materially adversely impact Parent and its Affiliates’ (excluding the CompanyCompany and its Subsidiaries) business.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (PMC Sierra Inc), Merger Agreement (PMC Sierra Inc)
Material Contracts. (a) Section 5.14 2.21 of the Company Disclosure Schedule Letter lists each of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries is currently a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries is currently bound (each, a “Material Contract”):
(a) each advertising, agency, manufacturer’s representative, joint marketing, joint development and joint venture Contract involving annual consideration of more than $200,000 in the aggregate 100,000 (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contractsroyalty payments);
(iib) any material sales agencythe top eight supply Contracts, sales representation, distributorship or franchise agreementexcluding purchase orders;
(iiic) each value added reseller, reseller or third-party sales affiliate Contract that cannot be terminated upon 30 days’ notice without penalty or payment;
(d) the top 15 customer Contracts based on revenues to the Company involving photovoltaic projects not completed prior to the date hereof;
(e) each 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 requiring lease payments in excess of $25,000 annually of the type required to be capitalized in accordance with GAAP;
(f) each Contract for capital expenditure in excess of $50,000 individually or series of related Contracts involving payments by or to $500,000 in the aggregate;
(g) each Contract in accordance with which the Company or any of its Subsidiaries is a lessor or lessee of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofany machinery, a loss of benefit underequipment, or triggering a price adjustmentmotor vehicles, right of renegotiation office furniture, fixtures or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense requiring rental payments in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months50,000 annually;
(xh) each license or other Contract providing rights to, or based upon, any Contract that (A) limits Company IP, other than non-exclusive licenses in any material respect connection with the freedom sale of the Company inventory or any provision of its Subsidiaries to engage or compete services in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiii) each Contract with any material Contract providing for the indemnification by Person with whom the Company or any of its Subsidiaries does not deal at arm’s length, other than those Contracts listed in Section 2.10(a) of the Company Disclosure Letter;
(j) each agreement 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 (other than a Subsidiary of the Company);
(k) each government grants Contract for which the research and development work undertaken thereunder is still continuing or under which the Company or any of its Subsidiaries has guaranteed continue to have obligations;
(l) each Contract relating to the disposition or acquisition of assets or any liabilities or obligations of interest in any other Person, in each case entered into business enterprise outside the ordinary course of the Company’s business;; or
(xiiim) any material each Contract requiring payment of royalties, payment as a result of and upon consummation of the transactions contemplated hereby, or payment of an “earn-out.” All Material Contracts with any (A) officer or director of are in executed written form, and the Company or any of its Subsidiaries (or any other employee who is one the applicable Subsidiary has performed all of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract obligations required to be filed performed by it and is entitled to all benefits under, and, to the Company pursuant Company’s knowledge, is not alleged to Item 601(a)(10) of Regulation S-K be in default in respect of, any Material Contract. Each of the SEC.
(b) The Company has prior to Material Contracts is in full force and effect, and the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listedCompany, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesapplicable Subsidiary, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge knowledge of the Company, any other party thereto is to each Material Contract, are not in default of any Material Contract as of the date here. Following the Effective Time, the Surviving Company and each of its Subsidiaries will be permitted to exercise all of their rights under the Material Contracts without the payment of any additional amounts of consideration other than ongoing fees, royalties or breach under payments that the Company and any of its Subsidiaries would otherwise be required to pay in accordance with the terms of any Company Material Contract except for such instances of default or breach that would Contracts had the transactions contemplated by this Agreement not be reasonably likely to result in a Material Adverse Effect on the Companyoccurred.
Appears in 2 contracts
Sources: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Material Contracts. (a) Section 5.14 3.12 of the Company Disclosure Schedule lists Letter sets forth a list of each of the following ContractsContracts to which, whether written or oralas of the date of this Agreement, to which the Company or any of its Subsidiaries Subsidiaries, if any, is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedeach, a “Company Material Contract”):
(i) any each Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect not to (or otherwise restricting or limiting the freedom ability of the Company or any of its Subsidiaries to engage or Subsidiaries, if any, to) compete in any line of business or with any Person or in any geographic area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights to restrict the ability of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeSubsidiaries, if any, to conduct business in any geographic area;
(xiii) agreements each Contract (other than any under the Company’s benefit plan) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries not that exceed $250,000;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire assets any material Company Assets;
(iv) all material Contracts for the granting or securities receiving of a third party license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (including standstill other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’, if any, customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms);
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) with an aggregate outstanding principal amount not exceeding $1,000,000;
(vii) any agreement for the disposition or agreements acquisition by a third party not to acquire assets the Company or securities any of its Subsidiaries, if any, with material obligations of the Company or any of its Subsidiaries Subsidiaries, if any, (including standstill agreements)other than confidentiality obligations) remaining to be performed or material Liabilities of the Company or any of its Subsidiaries, if any, continuing after the date of this Agreement, of any material business or any material amount of assets other than in each case entered into outside the ordinary course of business;
(xiiviii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts agreement with any (A) officer or director of the Company or any of its Subsidiaries top ten (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries10) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations customers of the Company and its Subsidiaries, if any, taken as a whole, as applicable and to (B) the Knowledge top ten (10) suppliers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2022 fiscal year and as of September 30, 2023, measured by the aggregate obligations paid or agreed to pay to or by the Company, as applicable;
(ix) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are binding obligations required by applicable Law;
(x) any Contract for the development of Intellectual Property, other than those entered into in the ordinary course of business with Company employees and contractors on the Company’s standard form for such Contracts; and
(xi) to the extent not set forth in Section 3.12(a) of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date Company Disclosure Letter pursuant to another subsection of this Agreement in accordance Section 3.12(a), all material agreements with their terms)any Governmental Authority.
(b) Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, if any, except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on Effect. Except as would not, individually or in the Companyaggregate, and no written notice reasonably be expected to terminate and no written notice of an intent to terminatehave a Company Material Adverse Effect, in whole or part, any Material Contract has been received by (i) neither the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries such Subsidiary, if any, nor, to the Knowledge of the Company, any other party thereto thereto, is in breach of or default or breach under any such Company Material Contract, (ii) as of the terms date of this Agreement, there are no material disputes in connection with any such Company Material Contract and (iii) as of the date of this Agreement, no party under any Company Material Contract except for has given written notice of its intent to terminate or otherwise seek a material amendment to such instances of default or breach that would not be reasonably likely to result in a Company Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (Bruush Oral Care Inc.), Merger Agreement (Bruush Oral Care Inc.)
Material Contracts. (a) Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents as of the date of this Agreement, or as set forth in Section 5.14 4.18 of the Company Disclosure Schedule lists each Schedule, as of the following Contractsdate of this Agreement, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as any of the date following types of this Agreement Contracts (each such Contract listed or required to be so listedContract, a “Company Material Contract”):
(i) any Contract that cannot be terminated on not more than 6 months’ notice;
(ii) any Contract relating to indebtedness (whether incurred, assumed, guaranteed or series of related Contracts for the purchasesecured by any asset) or any financial guaranty thereof in principal amount exceeding (i) $25,000,000 (as a borrower or guarantor) or (ii) $5,000,000 (as a lender) in each case, receipt, lease other than (A) any Contract solely among or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to between the Company or and any of its Subsidiaries of more than $200,000 in the aggregate Subsidiaries, (other than Contracts involving payments to the Company B) financial guarantees entered into in the ordinary course of businessbusiness or (C) a hedging, including investment banking contracts);
(ii) any material sales agencyderivative, sales representation, distributorship swap or franchise agreementother similar Contract;
(iii) any collective bargaining agreement or other similar Contract with any labor union, workers council or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofother similar labor organization (each, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company“Labor Agreement”);
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts agreement or series of related Contracts agreements, including any option agreement, relating to the acquisition or disposition of a any material amount business, capital stock, equity interests or portion of assets outside the ordinary course of business any other Person or any material real property (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real any consolidation, business combination, recapitalization or personal property involving annual expense reorganization, in each case, with a purchase price in excess of $1,000 and not cancelable 1,000,000, pursuant to which the Company or any of its Subsidiaries has outstanding performance, payment or indemnification obligations;
(v) any agreement to which the Company or any of its Subsidiaries is a party that is material to the conduct of the business as currently conducted, pursuant to which (A) the Company or such Subsidiary grants a license or right to any third Person to use any material Owned Intellectual Property Rights (other than non-exclusive licenses granted by the Company and its Subsidiaries to customers for the use of a Company product or service, to service providers and suppliers in connection with the provision of goods and services to the Company and its Subsidiaries, or to other third parties through APIs and similar technologies for purposes of interconnectivity between systems, in each case in the ordinary course of business), (without premium B) any third Person grants a license or penaltyother right to the Company or such Subsidiary to any material Intellectual Property Right (other than agreements for open source Software or granting non-exclusive rights to use readily commercially available off-the-shelf Software with annual payments by the Company or any of its Subsidiaries of less than $1,000,000) within six monthsor (C) the Company’s or any of its Subsidiaries’ ability to use, enforce or disclose any material Owned Intellectual Property Rights is materially affected or any agreement entered into in connection with the resolution of any material claim or dispute related to Intellectual Property Rights and under which the Company or any Subsidiary has any material ongoing obligation;
(xvi) any Contract agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which that would so limit the freedom of Parent, Parent or its Affiliates or the Company or any of their respective Affiliates its Subsidiaries after the Effective Time or Closing, (B) contains any material exclusivity, provides “most favored nation”” or similar provisions where the pricing, rights discounts or benefits to any business relation of the Company or any of its Subsidiaries changes based on the pricing, discounts or benefits offered to other business relations, (C) grants a right of first refusal, rights refusal or right of first negotiation offer or similar right for any line of business or assets of the Company or any of its Subsidiaries, (D) contains exclusivity obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or any of its Affiliates after the Effective TimeClosing, except, in each case of clauses (A) through (D), for any agreement made in the ordinary course of business that is not material to the business of the Company or its Subsidiaries taken as a whole;
(xivii) agreements by any material partnership, joint venture, strategic alliance, collaboration, co-promotion or other similar agreement or arrangement;
(viii) any agreement or arrangement with respect to profit sharing that is material to the Company and its Subsidiaries, taken as a whole, or to which the Company or any of its Subsidiaries not to acquire assets incurred or securities will incur payment obligations or received or will receive payments in excess of a third party $1,000,000;
(including standstill agreementsix) any agreement with any director or agreements by a third party not to acquire assets or securities officer of the Company or any of its Subsidiaries or with any “associate” or any member of the “immediate family” (including standstill agreements), as such terms are respectively defined in each case entered into outside Rules 12b-2 and 16a-1 of the ordinary course 1934 Act) of businessany such director or officer;
(xiix) any material Contract providing for the indemnification by agreement (including any “take-or-pay” or keepwell agreement) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries of any Person or under which (B) the Company or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person, Person (in each case entered into outside other than endorsements for the purpose of collection in the ordinary course of business);
(xi) any stockholder, investor rights or registration rights agreement;
(xii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Authority pursuant to which the Company or one of its Subsidiaries has any material outstanding obligation; and
(xiii) any other Contract, arrangement, commitment or understanding that is a “material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of promulgated under the SEC1933 Act).
(b) The Company has prior to the date of this Agreement delivered Except for breaches, violations or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those defaults which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect, (i) each of the Company, Material Contracts is valid and no written notice to terminate in full force and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by effect and (ii) neither the Company or nor any of its Subsidiaries. Neither , nor to the Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract, and since January 1, 2022, neither the Company nor any of its Subsidiaries norhas received written notice that it has breached, to the Knowledge of the Company, violated or defaulted under any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 2 contracts
Sources: Merger Agreement (Paychex Inc), Agreement and Plan of Merger (Paycor Hcm, Inc.)
Material Contracts. (a) Section 5.14 All Contracts, including amendments thereto, required to be filed as an exhibit to any report of Parent filed pursuant to the Exchange Act of the Company type described in Item 601(b)(10) of Regulation S-K under the Exchange Act have been so filed as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) since the date such Contract or amendment was filed.
(b) Other than the Contracts described in clause (a) above which were filed in an unredacted form, Section 4.11(b) of the Parent Disclosure Schedule lists each sets forth a complete and accurate list of the following Contracts, whether written or oral, Contracts to which the Company Parent or any of its Subsidiaries is a party or by which it is bound that fall within the following categories and existing as of the date of this Agreement hereof (each such Contract listed or required to be so listedcollectively, a the “Company Parent Material ContractContracts”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease purchase or use sale of materials, supplies, goods, services, equipment or other assets involving future (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by or to the Company or any of Parent and/or its Subsidiaries of $500,000 or more; or (2) gives rise to anticipated receipts of more than $200,000 500,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course Parent and/or its Subsidiaries of business, including investment banking contracts)any material penalty;
(ii) any material sales agencypartnership, sales representation, distributorship joint venture or franchise agreementother similar agreement or arrangement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a any material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise) pursuant to which Parent has material ongoing obligations entered into within the three years prior to the date hereof;
(iv) any Contract as obligor or guarantor relating to Indebtedness (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $500,000;
(v) any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that materially restricts the ability of Parent or any of Parent’s Subsidiaries (including the Company and the Company’s Subsidiaries following the Closing) to (A) compete in any line of business or 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 or properties;
(vi) any Contract to sell, lease, farmout, exchange or otherwise dispose of all or any part of the Oil and Gas Properties of Parent and its Subsidiaries;
(vii) each Contract for the sale, purchase, exchange or other disposition of Hydrocarbons produced from the Oil and Gas Leases or ▇▇▇▇▇ of Parent and its Subsidiaries;
(viii) each Contract that contains any drilling commitments;
(ix) all leases each Contract for any material Derivative Transaction of Parent or subleases for real or personal property involving annual expense in excess any of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsits Subsidiaries;
(x) any joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar Contract (or series of related Contracts) requiring Parent or any Subsidiary to make expenditures that would reasonably be expected to be in excess of (A) limits $1,500,000 in any material respect calendar year or (B) $3,000,000 during the freedom term thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract that provides for a “take-or-pay” clause or 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 Parent 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 Contracts that are terminable without penalty within 90 days;
(xii) each 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 to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of ParentSubsidiaries, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights of first refusal, rights of first negotiation in joint operating agreements or similar obligations unit agreements affecting the business or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities Oil and Gas Properties of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;Subsidiaries; and
(xiii) any material Contracts with any (A) officer Contract that constitutes a seismic, data or director of the Company geophysical license, agreement or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECpermit.
(bc) The Company has prior to the date of this Agreement delivered or Made Available to Each Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is a valid and binding obligations agreement of the Company and Parent or one of its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelledeffect, rescinded and none of Parent, any Subsidiary of Parent or, to Parent’s knowledge, any other party is in default or terminated after breach under the date terms of this Agreement in accordance with their terms)any such Parent Material Contract, except where the failure to be valid and binding and in full force and effect has not had and for any such defaults or breaches which would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Material Contracts. (a) Section 5.14 of Except for this Agreement and agreements filed with the SEC, neither the Company Disclosure Schedule lists each of the following Contractsnor any Company Subsidiary is, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedhereof, a “Company Material Contract”):party to or bound by any written agreement:
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any that is a “material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC.);
(bii) The Company has prior that is a partnership or joint-venture agreement (other than a partnership agreement constituting an organizational agreement of a Subsidiary) that is material to the date Company and the Company Subsidiaries considered as a single enterprise;
(iii) except for intercompany transactions among the Company and the Company Subsidiaries in the ordinary course of this Agreement delivered business consistent with past practices, relating to the borrowing of money (including any guarantee thereof) or Made Available to Parent complete and accurate copies of each Company Material Contract listedthat is a mortgage, security agreement, capital lease or required to be listedsimilar agreements, in Section 5.14 each case in excess of $100 million or that creates a Lien other than a Permitted Lien on any material asset of the Company Disclosure Schedule or any Company Subsidiary;
(including all amendmentsiv) other than any partnership, modificationsjoint venture or similar arrangement, extensions and renewals thereto and waivers thereunder). All that limits or purports to limit the ability of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Affiliates to compete or engage in any line of business, in any geographic area or with any Person and that, in each case, is material to the Company and the Company Subsidiaries considered as a single enterprise (it being further agreed the Company shall use its reasonable best efforts to provide to Parent by December 19, 2014, true and correct copies of all partnership, joint venture or similar arrangements with any such limitations and any other agreements with any such limitations that would apply to Parent or any of its Subsidiaries (other than the Company and the Company Subsidiaries) from and after the consummation of the Merger);
(v) except for intercompany transactions among the Company and the Company Subsidiaries in the ordinary course of business consistent with past practices, for the license or sublicense of any Intellectual Property or other intangible asset (whether as a licensor or a licensee) that provides (A) for payment of $25 million or more per year or (B) material exclusive rights to any third party;
(vi) relating to the sale of any of the assets or properties (other than dispositions of inventory and consumables in the ordinary course of business consistent with past practices) of the Company or any Company Subsidiary in excess of $50 million, other than those as to which the sale transaction has previously closed, (A) are so reflected on the Company’s financial statements and (B) the Company and the Company Subsidiaries have no continuing material obligation thereunder or relate to an intercompany transaction among the Company and the Company Subsidiaries in the ordinary course of business consistent with past practices;
(vii) relating to the acquisition by the Company or any Company Subsidiary of any assets (other than acquisitions of equipment and supplies in the ordinary course of business), operating business or the capital stock of any other Person in excess of $50 million other than those as to which the acquisition has previously closed and (A) are so reflected on the Company’s financial statements and (B) the Company and the Company Subsidiaries have no continuing obligation thereunder;
(viii) that (A) obligates the Company or any Company Subsidiary for more than one year, has total projected revenue of at least $100 million and is currently operating or currently projected to operate at a loss or (B) involves a take or pay amount of at least $100 million; and
(ix) with respect to a Company Stock Plan or Company Benefit Plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, except to the extent contemplated by Section 3.4. All written agreements of the type described in this Section 4.21, including those agreements filed with the SEC, shall be collectively referred to herein as the “Material Contracts.”
(b) Neither the Company nor any of its Subsidiaries Company Subsidiary, nor, to the Knowledge of the Company’s knowledge, any other party thereto counterparty to any Material Contract, has violated or is in alleged to have violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default or breach under the terms provisions of any Material Contract, except in each case for those violations and defaults which would not constitute a Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyEffect.
Appears in 2 contracts
Sources: Merger Agreement (Halliburton Co), Merger Agreement (Baker Hughes Inc)
Material Contracts. (a) Section 5.14 3.09(a) of the Company Disclosure Schedule Schedules lists each of the following Contracts of the Company and each Subsidiary that remains executory in whole or in part (such Contracts, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as together with all Real Property leases disclosed in Section 3.10(b) of the date Disclosure Schedules, the Assigned Contracts listed on Exhibit B, and all Company IP Agreements set forth in Section 3.12(b) of this Agreement (each such Contract listed or required to be so listedthe Disclosure Schedules, a being “Company Material ContractContracts”):
(i) any each Contract involving aggregate consideration in excess of Two Hundred and Fifty Thousand United States Dollars ($250,000) over the remaining term of the Contract, and which, in each case, cannot be cancelled without penalty or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of without more than $200,000 in the aggregate ninety (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)90) days’ notice;
(ii) all Contracts that require the Company or any material sales agency, sales representation, distributorship Subsidiary to purchase its total requirements of any product or franchise agreementservice from a third party or that contain “take or pay” provisions;
(iii) any Contract or series of related all Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating relate to the acquisition or disposition of (A) a material amount of stock of any other Person or (B) all or substantially all of the assets outside the ordinary course of business any Person (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixiv) all leases or subleases for real or personal property involving annual expense in excess Contracts with Third-Party agents relating to the sale of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom products on behalf of the Company or any Subsidiary and which are not cancellable without material penalty or without more than ninety (90) days’ notice;
(v) all employment agreements and Contracts with employees, independent contractors or consultants (or similar arrangements) to which the Company or any Subsidiary is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice;
(vi) except for Contracts relating to trade receivables, all Contracts relating to Indebtedness of its Subsidiaries the Company or any Subsidiary;
(vii) all Contracts with any Governmental Authority to engage which the Company or any Subsidiary is a party;
(viii) all Contracts that materially limit or purport to materially limit the ability of the Company or any Subsidiary to compete in any line of business or with any Person or in any geographic area or which would so limit the freedom during any period of Parent, time;
(ix) any Contracts imposing “most favored nation” or similar pricing terms on the Company or any of their respective Affiliates after the Effective Time Subsidiary or (B) contains any material exclusivity, “most favored nation”which grant exclusive rights, rights of first refusal, rights of first negotiation negotiation, rebates, volume discounts, pricing concessions or similar obligations or restrictions that are binding on rights to any Person;
(x) any Contracts to which the Company or any of its Subsidiaries Subsidiary is a party that provide for any joint venture or that would be binding on Parent or its Affiliates after the Effective Timepartnership;
(xi) agreements by all Contracts between or among the Company or any Subsidiary on the one hand and Seller or any Affiliate of its Subsidiaries not to acquire assets or securities of a third party Seller (including standstill agreements) or agreements by a third party not to acquire assets or securities of other than the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside Subsidiary) on the ordinary course of business;other hand; and
(xii) all collective bargaining agreements or Contracts with any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under Union to which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who Subsidiary is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECa party.
(b) The Company has prior Except as set forth in Section 3.09(b) of the Disclosure Schedules, each Material Contract is in full force and effect as to the date of this Agreement delivered applicable Company or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its SubsidiariesSubsidiary, and to the Knowledge of the Company are binding obligations of the Seller, each other parties party thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries Subsidiary nor, to the Knowledge of the CompanySeller’s Knowledge, any other party thereto is in breach of, or default under (or has received written notice that it is in material breach under the terms of or material default under), in any material respect, or has provided or received any written notice of any Company intention to terminate, any Material Contract. Except as set forth in Section 3.09(a) or Section 3.09(b) of the Disclosure Schedules, complete and correct copies of each Material Contract except for such instances of default or breach that would not be reasonably likely (including all modifications, amendments and supplements thereto and waivers thereunder) have been Delivered to result in a Material Adverse Effect on the CompanyBuyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Northwest Pipe Co)
Material Contracts. (a) Section 5.14 Except for the contracts disclosed in Schedule 4.12 of the Company Disclosure Schedule lists each of (the following “Material Contracts”), whether written or oral, to which the Company or any of its Subsidiaries is not currently a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease of personal property having an annual payment obligation in excess of $50,000 or series of related Contracts any real property;
(ii) any agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future that provides for either (A) annual payments by or to the Company of $50,000 or any of its Subsidiaries of more than $200,000 in the or (B) aggregate (other than Contracts involving payments to by the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship $50,000 or franchise agreementmore;
(iii) any Contract sales, distribution or series other similar agreement providing for the sale by the Company of related Contracts involving materials, supplies, goods, services, equipment or other assets (including, without limitation, any agreement or written arrangement with any customer of the Company) that provides for either (A) annual payments by or to the Company or any of its Subsidiaries of more than $50,000 in the or more or (B) aggregate that requires consent of or notice to a third party in the event of or with respect payments to the Merger in order to avoid a breach Company of $50,000 or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companymore;
(iv) promissory notesany partnership, loans, agreements, indentures, evidences of indebtedness joint venture or other instruments providing for similar agreement or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatearrangement;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixvi) all leases any agreement relating to indebtedness for borrowed money or subleases the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) involving amounts of $50,000 or more;
(vii) any option to acquire equity or assets or any license agreement (other than nonexclusive, inbound “shrinkwrapped” licenses and other similar licenses for real or personal property involving annual expense in excess computer software that are commercially available on non-discriminatory pricing terms at an individual acquisition cost of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsless);
(xviii) any Contract agency, dealer, distributorship, reseller or other similar agreement involving amounts of $50,000 or more;
(ix) any agreement that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company after the Closing Date;
(x) any agreement with any of the (i) Sellers or any of their respective Affiliates after the Effective Time Affiliates, (ii) any Person 5% or (B) contains any material exclusivitymore of whose outstanding voting securities are directly or indirectly owned, “most favored nation”, rights of first refusal, rights of first negotiation controlled or similar obligations or restrictions that are binding on the Company held with power to vote by Sellers or any of its Subsidiaries their Affiliates or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiiiii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their the “immediate family”) ” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any of Sellers’ Affiliates, other than employee compensation or expense reimbursements in the ordinary course of business consistent with past practices;
(xi) any agreement with any director or officer of the Company or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any such director or officer, director other than employee compensation or beneficial owner; andexpense reimbursements in the ordinary course of business consistent with past practices;
(xii) any agreement providing for indemnification by the Company, or in favor of the Company, other than indemnification provisions arising in the ordinary course of business and consistent with past practices, including without limitation in purchase orders, customer agreements or indemnities of lessors (other than any Affiliate) under any leases;
(xiii) any material agreement containing a “most favored nation” or similar provision or providing for minimum purchase or sale obligations;
(xiv) any agreement, arrangement, commitment or understanding relating to payments upon the change of control of the Company; or
(xv) any other Contract required agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to be filed by the Company pursuant to Item 601(a)(10and is not otherwise set forth in subsections (i) of Regulation S-K of the SECthrough (xiv) above.
(b) The Company has prior to the date of this Agreement delivered Each agreement, contract, plan, lease, arrangement, commitment or Made Available to Parent complete and accurate copies of each Company Material Contract listed, understanding disclosed or required to be listed, disclosed in this Schedule to this Agreement pursuant to this Section 5.14 4.12 is a valid and binding agreement of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice none of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries noror, to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any such agreement, contract, plan, lease, arrangement or commitment, and, to the knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. True and complete copies of each such agreement, contract, plan, lease, arrangement or commitment have been delivered to Parent or its representatives.
(c) The Company has fulfilled in all material respects all obligations required pursuant to each Material Contract except to have been performed by the Company prior to the date hereof.
(d) The Company has complied with all material terms contained in any Material Contract that provide for such instances pricing or other contract terms on a “most favored nation” or similar basis, and no refunds of default any past payments are or breach that would not be reasonably likely are expected to result in become due.
(e) The Company has obtained each consent required by a Material Adverse Effect on Contract (except a Material Contract containing no minimum purchase requirements that is terminable at any time by the Companycounterparty) (such consents, the “Material Consents”).
Appears in 1 contract
Material Contracts. (ai) Section 5.14 4.09(a) of the Company Disclosure Schedule lists each Letter sets forth a correct and complete list of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries H&G is a party or by under which it is bound as of H&G has continuing Liabilities that fall within the date of this Agreement following categories (each such Contract listed or required to be so listedcollectively, a the “Company H&G Material ContractContracts”):
(i1) any lease or sublease related to the H&G Leased Real Property;
(2) any Contract or series (excluding any Employee Benefit Plan set forth on Section 4.17(a) of related Contracts the Disclosure Letter) for the purchase, receipt, lease purchase of services or use of materials, supplies, goods, services, equipment or other assets involving future products providing for either (A) annual payments by H&G of $50,000 or to the Company more; or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(iiB) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments anticipated receipts by or to the Company or any of its Subsidiaries H&G of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companycalendar year;
(iv3) promissory notes, loans, agreements, indentures, evidences any Contract that provides for indemnification by H&G entered into outside of indebtedness or other instruments providing for or relating to the lending ordinary course of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatebusiness consistent with past practice;
(v4) any Contract restricting that relates to the payment sale of dividends or any of H&G’s assets, other than in the repurchase ordinary course of stock or other equitybusiness consistent with past practice;
(vi5) any collective bargaining agreementspartnership, joint venture or other similar Contract;
(vii6) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts Contract relating to the acquisition or disposition of any business, a material amount of stock or assets outside the ordinary course of business any other Person or any real property (in each case, whether by merger, sale of stock, sale of assets or otherwise)) pursuant to which H&G has continuing obligations following the Effective Date;
(ix7) all leases any Contract as obligor or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsguarantor relating to Indebtedness;
(x8) any Contract that limits, purports to limit, impedes, interferes with or restricts the ability of H&G or any of its Affiliates to (A) compete with any Person in a product line or line of business, (B) operate in any geographic location, (C) engage in any line of business, or (D) solicit for employment, hire or employ any Person;
(9) any material option, license, franchise or similar Contract;
(10) any Contract that (A) limits in any material respect the freedom of the Company obligates H&G to conduct business on an exclusive or any of its Subsidiaries to engage preferential basis, that contains a “most favored nation” or compete in any line of business or similar covenant with any Person or in that contains an exclusivity, requirements, “take or pay” or similar provision binding on H&G;
(11) any area Contract with a Governmental Authority;
(12) any Contract pursuant to which H&G grants or is granted a license or right to use, or covenant not to be sued under, any Intellectual Property Rights other than (A) licenses for commercially available Software that are generally available on nondiscriminatory pricing terms which would so limit the freedom have an aggregate annual cost of Parent$50,000 or less, the Company or any of their respective Affiliates after the Effective Time or and (B) contains non-exclusive licenses granted to, or by, H&G in the ordinary course of business consistent with past practice;
(13) any material exclusivityContracts between or among H&G, “most favored nation”on the one hand, rights and any Seller, any Affiliate of any Seller or any other Company, on the other hand, but not including any Contracts regarding any Employee Benefit Plan set forth on Section 4.17(a) of the Disclosure Letter;
(14) any collective bargaining agreement to which H&G is a party and any other Contract with a labor union or association representing any H&G Business Employee; or
(15) any employment, change of control, severance, consulting or restrictive covenant Contract with any current or former (A) officer, director or manager of H&G, (B) any H&G Business Employee (other than oral employment Contracts terminable at will without any further obligation of H&G), or (C) independent contractor;
(16) any Contract pursuant to which a consent or waiver of, or notice to, a counterparty thereto is required in connection with the consummation of the Transactions;
(17) any Contract that grants any right of first refusal, rights right of first negotiation offer, or similar obligations right with respect to any assets, rights or restrictions that are binding on the Company or any properties of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeH&G;
(xi18) agreements by any manufacturing Contract;
(19) any Contract relating to the Company distribution, marketing or advertising of any of its Subsidiaries not the H&G Products;
(20) any Contract between H&G, on the one hand, and any distributors, manufacturers’ agents or selling agents, on the other hand, or pursuant to acquire assets which H&G sells or securities of distributes products or pays a third party (including standstill agreements) or agreements by commission to a third party not Person with respect to acquire assets or securities the sale of the Company or H&G Products;
(21) any of its Subsidiaries (including standstill agreements)Contract with an H&G Material Customer, in each case other than purchase orders entered into outside in the ordinary course of businessbusiness consistent with past practice;
(xii22) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owneran H&G Material Supplier; and
(xiv23) any other Contract required which is not otherwise described in clauses (i)-(xxii) above that is material to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.H&G.
(bii) The Company H&G has prior made available to the date of this Agreement delivered or Made Available to Parent Buyer a correct and complete and accurate copies copy of each Company H&G Material Contract. Each Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are which H&G is a party is in full force and effect (except those which are cancelledand is a legal, rescinded or terminated after the date valid and binding obligation of this Agreement H&G enforceable in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norrespective terms against H&G and, to the Knowledge of H&G, each other party to such Contract subject, in the Companycase of enforceability, to the Enforceability Exception, and there is no existing default or breach by H&G under any such Contract (or event or condition that, with or without notice or lapse of time or both, could constitute a default or breach) and, to the Knowledge of H&G, there is no such default or breach (or event or condition that, with or without notice or lapse of time or both, could constitute a default or breach) with respect to any other party thereto to any such Contract. There has not been any written notice to or, to the Knowledge of H&G, threat to terminate any Contract to which H&G is in default a party. To the Knowledge of H&G, no event has occurred which (with or breach without notice or lapse of time or both) permits any termination, modification or acceleration of payment, or requires any payment, under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in which H&G is a Material Adverse Effect on the Companyparty.
Appears in 1 contract
Sources: Stock Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Material Contracts. (a) Set forth in Section 5.14 4.16(a) of the Company Disclosure Schedule lists each Letter is a complete and accurate list of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which it is bound as of the date of this Agreement hereof (each such Contract listed Contract, whether or required to be so listednot set forth in such section of the Company Disclosure Letter, a “Company Material Contract”):
(i) employment Contract, independent contractor or consulting Contract, severance Contract, change of control Contract or any employee collective bargaining agreement or other Contract with any labor union;
(ii) Contract not to compete or otherwise restricting in any material respect the development, manufacture, marketing, distribution or sale of any products or services (including any Contract that requires the Company or series any of related the Company Subsidiaries to work exclusively with any Person in any particular area) or any other similar limitation on the ability of the Company or any of the Company Subsidiaries to transact or compete in any line of business, in any therapeutic area, with any Person, in any geographic area or during any period of time;
(iii) Contract with (A) any Affiliate of the Company, other than any of the Company Subsidiaries, or any officer or director, (B) any current holder of capital stock of the Company or any Affiliate (other than any director, officer or employee or former employee holding incentive awards under any Stock Plan), or (C) any director or officer of the Company or a Company Subsidiary (other than any Contracts for of the purchasetype described in Section 4.16(a)(i) or indemnification agreements), receiptin each case required to be disclosed by the Company in the Company SEC Reports under Regulation S-K, lease or use of materialsItem 404, supplieswithout regard to any monetary thresholds therein;
(iv) each lease, goodslicense, services, equipment sublease or other assets occupancy right or similar Contract with any Person (together with any amendments or supplements thereto) under which the Company or any of the Company Subsidiaries are a lessee, lessor or sublessor of, or makes available for use, to any Person (other than the Company), any real property or any portion or any premises otherwise occupied by or owned by the Company or any of the Company Subsidiaries (each such lease, license, sublease or other occupancy right or similar Contract, a “Lease”);
(v) Contract (A) requiring or otherwise involving future payments the obligation (including any contingent obligation) to make payment by or to the Company or any of its the Company Subsidiaries of more than an aggregate of $200,000 100,000, (B) in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to which the Company or any of its the Company Subsidiaries of more than $50,000 in the aggregate that requires consent of have granted development rights, “most favored nation” pricing provisions or notice to a third party in the event of marketing or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or distribution rights relating to any product or product candidate or (C) in which the lending Company or any of money, whether as borrower, lender the Company Subsidiaries have agreed to purchase a minimum quantity of goods relating to any product or guarantor, in amounts greater than $25,000 in the aggregate;
(v) product candidate or has agreed to purchase goods relating to any Contract restricting the payment of dividends product or the repurchase of stock or other equityproduct candidate exclusively from a certain party;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to Contract for the acquisition or disposition of a material amount any significant portion of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom business of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company Subsidiaries or any agreement for the acquisition, directly or indirectly, of their respective Affiliates after a material portion of the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations business of any other Person, in each case entered into outside within the last three years;
(vii) Contract for any joint venture, partnership, material research and development project or similar arrangement;
(viii) Contract granting any Person any license from the Company or any of the Company Subsidiaries to any Company Intellectual Property, or pursuant to which the Company or any of the Company Subsidiaries has been granted by any Person any material license to any Intellectual Property, or any other license, option, freedom from suit, release, transfer, or other Contract to which the Company or any of the Company Subsidiaries is a party relating in whole or in part to the Company Intellectual Property or the Intellectual Property of any other Person (provided, however, that the foregoing need not include OTS Software Licenses or routine material transfer and service agreements);
(ix) Contract (other than trade debt incurred in the ordinary course of business) under which the Company or any of the Company Subsidiaries have borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness for borrowed money to, any Person;
(xiiix) any material Contracts with any Contract under which (A) officer any Person has directly or director indirectly guaranteed indebtedness for borrowed money, liabilities or obligations of the Company or any of its the Company Subsidiaries or (B) the Company or any other employee who is one of the twenty most highly compensated employees Company Subsidiaries have directly or indirectly guaranteed indebtedness for borrowed money, liabilities or obligations of any Person (other than a Company Subsidiary), in each case other than (I) endorsements for the purpose of collection in the ordinary course of business and (II) ordinary course Contracts relating to research and development of products;
(xi) except for Contracts covered by clause (ix) above, Contract under which the Company or any of the Company Subsidiaries have, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person other than a Company Subsidiary;
(xii) Contract providing for any mortgage or security interest in material property of the Company and its the Company Subsidiaries;
(xiii) confidentiality agreements with any full time employee of the Company or any of the Company Subsidiaries that is not substantially in the form of the Company’s or a Company Subsidiary’s form of confidentiality agreement;
(xiv) Contract involving a supply or tolling agreement or arrangement that commits the Company or any of the Company Subsidiaries to purchase goods or supplies relating to any product candidate for clinical studies or commercial use to the twelve-month periods ended November 30, 2009 extent the commitment is not accrued on the most recent balance sheet of the Company contained in the Company SEC Reports;
(xv) Contract involving a standstill or similar obligation of the Company or any of the Company Subsidiaries to a third party or of a third party to the Company or any of the Company Subsidiaries;
(xvi) Government Contracts;
(xvii) Contract that is not terminable by the Company or the Company Subsidiaries upon less than 31 days’ notice without penalty (such penalty to exclude any failure to continue receiving any product or service that is discontinued as a result of such termination) to the Company or the Company Subsidiaries and 2010; not otherwise required to be disclosed in response to any other subparagraph of this Section 4.16(a) involving (A) payment obligations of the Company or the Company Subsidiaries in excess of $25,000 in the aggregate from and after the Closing Date or (B) record any commitment of employees or beneficial owner of five percent or more contractors of the voting securities of Company; Company or (C) affiliate (as the Company Subsidiaries under such term is defined in Rule 12b-2 promulgated under Contract from and after the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 Closing Date to the extent that the dollar value equivalent of the ▇▇▇▇ ▇▇▇) time of any such officer, director employees or beneficial ownercontractors committed under such Contract is reasonably likely to exceed $25,000 in the aggregate from and after the Closing Date; and
(xivxviii) any other Contract not entered into in the ordinary course of business that is material to the Company and the Company Subsidiaries taken as a whole and not otherwise required to be filed by the Company pursuant disclosed in response to Item 601(a)(10) any other subparagraph of Regulation S-K of the SECthis Section 4.16(a).
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 Each of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesis valid, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or is enforceable in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received accordance with its terms by the Company or any of its Subsidiariesand the Company Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception. Neither the Company nor any of its the Company Subsidiaries is in material default under any Material Contract, nor, to the Knowledge knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder by the Company and the Company Subsidiaries party thereto. To the knowledge of the Company, no other party thereto to any Material Contract is in material default thereunder, nor does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder of such other party. Neither the Company nor any of the Company Subsidiaries has received any written notice (or to the knowledge of the Company any oral notice) of termination or cancellation under any Material Contract or received any written notice (or to the knowledge of the Company any oral notice) of breach or default in any material respect under any Material Contract which breach has not been cured. Except as separately identified in Section 4.16(b) of the terms Company Disclosure Letter, no approval, consent or waiver of any Company Person is needed in order that any Material Contract except for such instances continue in full force and effect immediately following the consummation of default the Transactions. The Company has provided, or breach that would not be reasonably likely otherwise made available to result Parent, complete and accurate copies of all of the Material Contracts currently in a Material Adverse Effect on the Companyeffect.
Appears in 1 contract
Material Contracts. (a) Section 5.14 of the Company Disclosure Schedule lists each of the following ContractsExcept for agreements, whether written contracts, plans, leases, arrangements or oralcommitments disclosed in SECTION 3.14 OF THE COMPANY DISCLOSURE SCHEDULE, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed the Company is not a party to or required subject to be so listed, a “Company Material Contract”):any:
(i) any Contract or series of related Contracts lease;
(ii) contract for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for annual payments by or to the Company or any of and/or its Subsidiaries of more than $200,000 of, or pursuant to which in the aggregate (other than Contracts involving payments to last 12 months the Company entered into has paid, $A100,000 or more;
(iii) sales, distribution or other similar agreement providing for the sale by the Company of, or pursuant to which in the last 12 months the Company sold, materials, supplies, goods, services, equipment or other assets for an aggregate purchase price of $A100,000 or more;
(iv) partnership, joint venture, manufacture, development, supply or other similar contract, arrangement or agreement;
(v) contract relating to indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), except contracts relating to indebtedness incurred in the ordinary course of business, including investment banking contracts)business in an amount not exceeding $A100,000;
(iivi) indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for borrowing or any material sales agency, sales representation, distributorship pledge or franchise security agreement;
(iiivii) any Contract employment or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination ofconsulting agreement;
(viii) license, a loss of benefit undertechnology transfer, or triggering a price adjustment, right of renegotiation franchise or other remedy under, agreement in respect of any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on Intellectual Property or other property owned or used by the Company;
(ivix) promissory notesagency, loansdealer, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements sales representative or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six monthsagreement;
(x) any Contract contract or other document that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xi) agreements by contract or commitment with or for the Company or benefit of any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;Interested Person; or
(xii) any material Contract providing for the indemnification by the Company contract with any governmental or any of its Subsidiaries of any Person quasi-governmental entity; or
(xiii) other contract or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, commitment not made in each case entered into outside the ordinary course of business;
(xiii) any business that is material Contracts with any (A) officer or director of to the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (taken as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECa whole.
(b) The Company has prior Each agreement, contract, plan, lease, arrangement and commitment disclosed in any schedule to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in disclosed pursuant to Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are 3.14(a) is a valid and binding obligations agreement of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is not, nor, to the Knowledge of the Company's Knowledge, is any other party thereto is in default or breach in any material respect under the terms of any Company Material Contract except for such instances agreement, contract, plan, lease, arrangement or commitment, nor, to the Company's Knowledge, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute an event of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companythereunder.
Appears in 1 contract
Material Contracts. (a) Section 5.14 4.14(a) of the Company Disclosure Schedule lists each of the following Contracts, whether written Contracts (other than Company Benefit Plans and other than Contracts with respect to the Company Intellectual Property or oral, Leased Real Property) that is currently in effect to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedeach, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) any Contract or series of related Contracts for the purchaseindenture, receiptcredit agreement, lease or use of materialsloan agreement, suppliessecurity agreement, goodsguarantee, servicesnote, equipment mortgage or other assets involving future payments by evidence of Debt or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)agreement providing for Debt;
(ii) any material sales agency, sales representation, distributorship Contract containing a covenant not to compete restricting the ability of the Company to compete in any line of business or franchise agreementin geographic area or during any period of time;
(iii) any Contract which creates a partnership or series of related Contracts involving payments by joint venture or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companysimilar arrangement;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregateeach Lease;
(v) any Contract restricting the payment of dividends stockholders, investors rights or the repurchase of stock or other equitysimilar Contracts;
(vi) any collective bargaining agreementsor other similar labor or union Contracts;
(vii) any material joint ventureContract providing for retention payments, profit sharingchange of control payments, partnership agreements accelerated vesting or any other similar agreementspayment or benefit to any Person that may or will become due as a result of any of the transactions contemplated by this Agreement;
(viii) any Contracts offer letter, employment agreement, independent contractor agreement, consulting agreement, or series of related Contracts relating to similar Contract with any current Service Provider that is not immediately terminable at-will by the acquisition Company without notice, severance, or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets other cost or otherwise)liability;
(ix) all leases any Contract relating to the acquisition, transfer, use, development, sharing or subleases license of any Intellectual Property, other than confidentiality agreements, employment agreements, consulting agreements, material transfer agreements, clinical trial agreements and off-the-shelf, shrink-wrap, or click-wrap licenses and/or other licenses for real or personal property involving commercially available software with annual expense in excess of license fees under Fifty Thousand Dollars ($1,000 and not cancelable by the Company (without premium or penalty) within six months50,000);
(x) any Contract that Contracts, other than Contracts made in connection with this Agreement, relating to (Ai) limits in the disposition of the Business or any material respect the freedom assets of the Company (other than sales of inventory in the ordinary course of business), (ii) the purchase or sale or transfer of any outstanding Company Capital Stock, (iii) any merger, consolidation or business combination involving the Company, or (iv) restructuring or sale of the Company, its Subsidiaries to engage assets or compete in the Business;
(xi) any line of business or with any Person or in any area or which would so limit the freedom of Parent, Contract that contains an option granted by the Company (other than a Company Option or Company Convertible Notes) or the grant by the Company of any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights right of first refusalrefusal or right of first offer, rights right of first negotiation or similar obligations or restrictions that are binding on right in favor of a party other than the Company or any of its Subsidiaries that limits or that would be binding on Parent or its Affiliates after purports to limit the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities ability of the Company to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessassets or businesses;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or Contracts under which the Company has agreed to indemnify third parties (other than in the ordinary course of business) or which provide for earnouts or other contingent liabilities;
(xiii) any of its Subsidiaries Contract under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or (B) the Company has guaranteed liabilities or obligations of any other Person, Person (in each case entered into outside other than endorsements for the purposes of collection in the ordinary course of businessbusiness consistent with past practice);
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any Contract with any Related Person other than confidentiality agreements, employment agreements, employment offer letters or consulting agreements entered into in the ordinary course of business consistent with past practice or Contracts relating to the issuance of Company Options or Company Capital Stock;
(xv) any agreements which purport to bind Affiliates of the Company to any material obligation;
(xvi) Contracts (pursuant to which the Company or any other party thereto has continuing obligations) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or income or revenues related to any Company Product;
(xvii) each joint development agreement, joint venture agreement, collaboration agreement or similar such Contract required relating to be filed any Company Product;
(xviii) each Contract pursuant to which a third party manages or provides services in connection with clinical trials relating to any Company Product;
(xix) each Contract (i) in which the Company has granted to a third party development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any Company Product or (ii) in which the Company has agreed to purchase a minimum quantity of goods relating to any Company Product or has agreed to purchase goods relating to any Company Product exclusively from a certain third party;
(xx) each Contract pursuant to which the Company obtains the Company Products or any components thereof;
(xxi) any Contract explicitly requiring payments by the Company in excess of One Hundred Thousand Dollars ($100,000) in the current fiscal year;
(xxii) any Contract with a Governmental Authority that the Company reasonably expects to result in payments in excess of One Hundred Thousand Dollars ($100,000) in any twelve (12) month period after the Closing Date;
(xxiii) any Contract explicitly providing for receipts by the Company in excess of One Hundred Thousand Dollars ($100,000) in the current fiscal year;
(xxiv) all Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Company, or income or revenues related to any Company Product, where such payments are expected to exceed Fifty Thousand Dollars ($50,000) in the twelve (12) month period following the date hereof;
(xxv) any Contract: (1) relating to the employment of, or the performance of services by, any employee, contractor, salesperson, or consultant of the Company or its Subsidiaries, other than any at-will employment or services agreement providing no severance or other-post-termination benefits (other than continuation coverage required by law); or (2) pursuant to Item 601(a)(10) of Regulation S-K which the Company or its Subsidiaries is or may become obligated to make any severance, termination or similar payment to any current or former employee, director of the SECCompany, individual consultants, contractors, or sales persons; or (3) pursuant to which the Company is or may become obligated to make any bonus or similar payment (other than payments constituting base salary) in excess of One Hundred Thousand Dollars ($100,000) to any current or former employee, director, individual consultants, contractors, or sales persons; and
(xxvi) all Contracts with Major Suppliers.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Neither the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto to any Company Material Contract, is in material breach of or default under any Company Material Contract and, to the Knowledge of the Company, no event has occurred that (with or without notice or lapse of time) will, or would reasonably be expected to (i) result in a material violation, breach or penalty under any of the terms provisions of any Company Material Contract except for such instances of Contract, (ii) give any Person the right to declare a material default or exercise any remedy under any Company Material Contract, (iii) give any Person the right to accelerate the maturity or performance of any such Company Material Contract, or (iv) give any Person the right to cancel, terminate or modify any Company Material Contract. The Company has not received any written notice or claim of any breach that would not be reasonably likely or default from the counterparty to result any Company Material Contract. Each Company Material Contract is in a full force and effect and is valid, binding and enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. True and complete copies of each written Company Material Adverse Effect on Contract have been made available to Parent prior to the Companydate of this Agreement.
Appears in 1 contract
Material Contracts. (a) Section 5.14 4.11(a) of the Schedules sets forth a list as of the date of this Agreement of all of the following Contracts to which the Company or any of the Company’s Subsidiaries is a party that are in effect or otherwise contain any outstanding Contractual Obligations of the Company Disclosure Schedule lists each or any of the following Company’s Subsidiaries (the “Material Contracts”):
(i) collective bargaining agreements or other similar Contracts with any labor union or other employee representative body representing any employee of the Company or any of its Subsidiaries;
(ii) Contracts providing for the sale by the Company and/or its Subsidiaries of goods and/or services of more than $250,000 or the equivalent in other currencies;
(iii) Contracts (other than such Contracts described in clause (xiv) below) providing for the purchase by the Company and/or its Subsidiaries of goods and/or services from third party vendors or suppliers of more than $250,000 or the equivalent in other currencies;
(iv) Contracts with all Materials Customers and Materials Suppliers;
(v) Contracts that are not cancellable by the Company or any of its Subsidiaries on notice of ninety (90) days or fewer and expressly provide for aggregate annual payments by the Company or any of its Subsidiaries of greater than $500,000;
(vi) joint venture, partnership, limited liability, profit sharing or other similar Contracts, except for distribution agreements and reseller agreements entered into in the Ordinary Course of Business and the legal documents by which the Company or any of its Subsidiaries establishes its legal existence or that govern its internal affairs;
(vii) Contracts providing for the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line, or capital stock of any other Person since January 1, 2020 (whether written by merger or oralother business combination, the purchase or sale of equity securities or assets or other similar transaction);
(viii) each Contract for the settlement of any Proceeding pursuant to which the Company or any of its Subsidiaries is a party obligated to pay an amount greater than $250,000 or by which it is bound as has other continuing obligations (other than customary confidentiality obligations);
(ix) Contracts providing for the incurrence of outstanding Indebtedness, or creating any Lien (other than Permitted Liens) upon any assets of the date Company or any of this Agreement its Subsidiaries, other than purchase money security interests in connection with the acquisition of equipment with an aggregate value of less than $50,000;
(each such Contract listed x) Third-Party Intellectual Property Licenses (other than non-exclusive licenses to customers entered into in the Ordinary Course of Business and/or generally commercially available “off-the-shelf” Software for a payment by the Company of less than $250,000) and any Contracts that otherwise relate to the development or required to be so listed, a “Company Material Contract”):ownership of Intellectual Property;
(xi) Contracts (i) containing provisions that expressly limit, restrict or prohibit the Company or any of the Company’s Subsidiaries or other Affiliates from (A) acquiring any product or other asset or any services from any Person (e.g., exclusive purchase requirements), (B) selling any product or other asset to or performing any services for any Person, (C) soliciting for employment or engagement or hiring any Person, or (D) competing in any line of business, with any Person or in any geographic area, or exploiting any Intellectual Property owned by the Company or any of the Company’s Subsidiaries or (ii) pursuant to which the Company or any of its Subsidiaries agrees to provide “most favored nation” status to any Person;
(xii) All Contracts that provide for any minimum purchase obligations or requirements-based purchases;
(xiii) leases or subleases under which the Company or any of the Company’s Subsidiaries lease or occupy Leased Real Property (the “Leases”);
(xiv) any Contract for the employment or series services of related any director, officer, employee or independent contractor of the Company or one of its Subsidiaries providing annual base salary or fees in excess of $150,000, other than Contracts terminable by the Company for any reason upon less than thirty (30) days’ notice without incurring any liability;
(xv) any Contract under which (A) any Person (other than any of the Company’s Subsidiaries) has directly or indirectly guaranteed any material liabilities or obligations of the Company or (B) the Company has directly or indirectly guaranteed any material liabilities or obligations of any other Person (other than any of the Company’s Subsidiaries);
(xvi) Contracts with any Governmental Authority (other than Permits);
(xvii) all Contracts for the purchase, receipt, lease sale or use purchase of materials, supplies, goods, services, equipment real estate;
(xviii) all franchise or other assets involving future similar Contracts or arrangements with dealers pursuant to which the amount of Company Products purchased or sold in the last 12 months exceeds $250,000;
(xix) all Contracts providing for earn-outs, contingent payments or any other type of similar payment payable by or to the Company or any of its Subsidiaries with outstanding obligations as of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)date hereof that are already payable or may become payable;
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixxx) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that Contracts which (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with grant any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar rights or (B) contains any material indemnification obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside of the ordinary course Ordinary Course of businessBusiness;
(xiixxi) any material Contract providing for the indemnification by all Contracts requiring future capital expenditures of the Company or any of its Subsidiaries in excess of $250,000 individually or in the aggregate;
(xxii) all Contracts with (x) any Related Party and (y) to the Knowledge of the Company, any Affiliate of any Person of the Persons referred to in clauses (a) and (b) of the definition of Related Party;
(xxiii) all current Insurance Policies;
(xxiv) Contracts (or under a series of related Contracts) pursuant to which the Company or any of its Subsidiaries has guaranteed agreed to acquire, or lease or sublease (as a lessee) any liabilities property or obligations tangible asset (other than in the Ordinary Course of any other Person, Business) for an annual amount in each case entered into outside the ordinary course excess of business;$100,000; or
(xiiixxv) Contracts including options, to sell or lease (as lessor) any material Contracts with any property or tangible asset (Aother than in the Ordinary Course of Business) officer or director of the Company or any of its Subsidiaries (or any other employee who is one for an annual amount in excess of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC$100,000.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Each Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is valid and binding obligations of on the Company and its Subsidiariesany of the Company’s Subsidiaries to the extent the Company or such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception. The Company are binding obligations or its Subsidiary, as applicable, and, to the Knowledge of the Company, each of the other parties thereto, and are not in full force and effect (except those which are cancelledmaterial breach of, rescinded material default or terminated after the date material violation under, any of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a such Material Adverse Effect on the Company, Contracts and no written event has occurred that with notice to terminate and no written notice or lapse of an intent to terminatetime, in whole or partboth, any Material Contract has been received by the Company would constitute such a material breach, material default or any of its Subsidiariesmaterial violation. Neither the Company nor any of its the Company’s Subsidiaries has received written notice nor, to the Knowledge of the Company, any other party thereto is in default or breach under oral notice of the terms existence of any Company event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material breach or material default under any Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the part of the Company or any of the Company’s Subsidiaries under any such Material Contract. A true, correct and complete copy of each Material Contract required to be disclosed on Section 4.11(a) of the Schedules as of the date hereof has been made available by the Company to Purchaser.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Material Contracts. (a) Except for the Contracts listed in Section 5.14 3.13(a) of the Company Seller Disclosure Schedule lists each (true and complete copies of such Contracts have been made available to Buyer prior to the following Contractsdate hereof), whether written or oral, to which neither the Company or nor any of its Subsidiaries Subsidiary is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract or series of related Contracts providing for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments payment by or to the Company or any Subsidiary of an amount in excess of RMB 100,000 or its Subsidiaries Equivalent Foreign Currency Amount annually or RMB 100,000 or its Equivalent Foreign Currency Amount over the entire term of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)such Contract;
(ii) any material sales agencypartnership, sales representation, distributorship joint venture or franchise agreementother similar Contract or arrangement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ixiv) all leases any Contract relating to Indebtedness, except any such agreement with an aggregate outstanding principal amount not exceeding RMB 100,000 or subleases for real or personal property involving annual expense in excess its Equivalent Foreign Currency Amount and which may be prepaid on not more than 45 days’ notice without the payment of $1,000 and not cancelable by the Company (without premium or any material penalty) within six months;
(xv) any franchise or similar Contract;
(vi) any license or other Contract granting rights to any third party to any material Owned Intellectual Property Rights or Licensed Intellectual Property Rights;
(vii) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries Subsidiary to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates Subsidiary after the Effective Time or Closing Date;
(Bviii) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on Contract by the Company or any Subsidiary with (A) any Person directly or indirectly owning, Controlling or holding with power to vote any of its Subsidiaries the outstanding equity securities of the Company, any Subsidiary or any Affiliate of such Person, (B) any Person whose outstanding voting securities are directly or indirectly owned, Controlled or held with power to vote by the Company or any Subsidiary or (C) any director or officer of the Company or any Subsidiary or any Affiliates of any such director or officer;
(ix) any Contract that would be binding on Parent involves the ownership or lease of, title to, use of, or any leasehold or other interest in, any real or personal property (except for personal property leases involving payments of less than RMB 100,000 or its Affiliates after Equivalent Foreign Currency Amount per annum);
(x) any Contract involves the Effective Timewaiver, compromise, or settlement of any material dispute, claim, litigation or arbitration;
(xi) agreements by the Company any other Contract or any of its Subsidiaries plan not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), made in each case entered into outside the ordinary course of business;
(xii) any business that is material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of to the Company and its the Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (taken as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECa whole.
(b) The Company has prior to Each Contract disclosed in Section 3.13(a) of the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, Seller Disclosure Schedule or required to be listedso disclosed pursuant to Section 3.13(a) (collectively, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company “Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are Contracts”) is in full force and effect (except those which are cancelledand constitutes a valid and binding agreement of the Company or a Subsidiary, rescinded as the case may be, enforceable against the Company or terminated after such Subsidiary, as the date of this Agreement case may be, in accordance with their termsits terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on .
(c) None of the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norSubsidiary or, to the Knowledge knowledge of the Companysuch Seller, any other party thereto is in default or breach under any Material Contract and, to the terms knowledge of such Seller, no event or circumstance has occurred, or would likely to occur, that, with notice or lapse of time or both, would constitute any event of default thereunder.
(d) Neither the Company nor any Subsidiary has delegated any power or issued any powers of attorney in favor of any Person, other than powers of attorney issued to directors, officers, or employees of the Company Material Contract except or the Subsidiaries for purposes of executing contracts or agreements for and on behalf of the Company or such instances Subsidiary in the ordinary course of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companybusiness.
Appears in 1 contract
Sources: Share Purchase Agreement (China Lodging Group, LTD)
Material Contracts. (a) Section 5.14 Except for this Agreement and except for Contracts that are filed as exhibits as part of the Company Disclosure Schedule lists each Record on or after the Applicable Date and prior to the date of this Agreement and made available to Parent, as of the following Contractsdate of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by, without duplication:
(i) other than Contracts with employees, any Contract that is reasonably expected to require, during the remaining term of such Contract, either (A) annual payments to or from the Company and its Subsidiaries of more than $1,00,000 or (B) aggregate payments to or from the Company and its Subsidiaries of more than $3,000,000;
(ii) any Contract (other than those solely between or among the Company and any of its Wholly Owned Subsidiaries) relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether written incurred, assumed, guaranteed or oralsecured by any asset) in excess of $1,000,000;
(iii) any Contract related to any settlement of any material Claims;
(iv) 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 is owns more than a party fifteen percent voting or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listedeconomic interest, a “Company Material Contract”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of interest valued at more than $200,000 in the aggregate (other than Contracts involving payments 1,000,000 without regard to percentage voting or economic interest, except for any such agreements or arrangements solely between the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship and its Wholly Owned Subsidiaries or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on solely among the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate’s Wholly Owned Subsidiaries;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the the, direct or indirect, acquisition or disposition of a any material amount of assets outside the ordinary course of or business (in each case, whether by merger, sale of stock, sale of assets or otherwise)) that was entered into after the Applicable Date;
(ixvi) all leases any Contract that contains a put, call, right of first refusal, right of first offer or subleases for real similar right or personal property involving annual expense obligation or any other obligation pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests or assets of any Person reasonably expected to result in payments with a value in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months1,000,000 in any twelve-month period;
(xvii) any Contract that (A) limits prohibits the payment of dividends or distributions in respect of the shares, membership interests, partnership interests or other equity interests of the Company or any material respect of its Subsidiaries, the freedom pledging of the shares, membership interests, partnership interests or other equity interests of the Company or any of its Subsidiaries to engage or compete in any line the incurrence of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on Indebtedness by the Company or any of its Subsidiaries Subsidiaries;
(viii) any Contract that (A) restricts the ability of the Company or that any of its Affiliates or, at or after the Closing, would be binding on restrict Parent or any of its Affiliates from (1) engaging in any business or competing in any business with any Person or (2) operating its business in any manner or location, or (B) would require the disposition of any material assets or line of business of the Company or its Affiliates or acquisition of any material assets or line of business of any Person or, at or after the Effective Time;Closing, Parent or any of its Affiliates; and
(xiix) agreements any other Contract or group of related Contracts not otherwise described in the foregoing clauses (i) through (viii) of this Schedule B11(a) that if terminated or subject to a breach or default by any party thereto, would, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole (together with each Contract constituting any of the foregoing types of Contract described in clauses (i) through (viii) of this Schedule B11(a), a “Material Contract”).
(b) A correct and complete copy of each Material Contract (including, for the avoidance of doubt, any amendments or supplements thereto) has been made available to Purchaser and Parent.
(c) Except for expirations in the Ordinary Course of Business and in accordance with the terms of such Material Contract, each Material Contract (and those Contracts which would be Material Contracts but for the exception of being filed as exhibits as part of the Disclosure Record on or after the Applicable Date and prior to the date of this Agreement) is valid and binding on the Company and/or one or more of its Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, 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.
(d) As of the date of this Agreement, there is no breach or violation of or default under any Material Contract (and those Contracts which would be Material Contracts but for the exception of being filed as exhibits as part of the Disclosure Record on or after the Applicable Date and prior to the date of this Agreement) by the Company or any of its Subsidiaries not or, to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities the Knowledge of the Company Company, any other party thereto, and no event has occurred that with or without notice, lapse of time or both, would constitute or result in a breach or violation of or default under any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification such Contracts by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries noror, to the Knowledge of the Company, any other party thereto is in default or breach under would permit or cause the terms termination or modification thereof or acceleration or creation of any right or obligation thereunder, in each case, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in and its Subsidiaries, taken as a Material Adverse Effect on the Companywhole.
Appears in 1 contract
Material Contracts. (i) Neither the Company nor any Subsidiary is a party to or bound by:
(a) Section 5.14 any lease (whether of the Company Disclosure Schedule lists each real or personal property) providing for annual rentals of the following Contracts, whether written $25,000 or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):more;
(ib) any Contract or series of related Contracts agreement for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for either annual payments by the Company and the Subsidiaries of $25,000 or to more or aggregate payments by the Company and the Subsidiaries of $100,000 or more;
(c) any sales, distribution or other similar agreement providing for the sale by the Company or any Subsidiary of its materials, supplies, goods, services, equipment or other assets that provides for either annual payments to the Company and the Subsidiaries of $25,000 or more or aggregate payments to the Company and the Subsidiaries of $100,000 or more;
(d) any white label, omnibus or similar agreement or arrangement;
(e) any introducing broker or other similar agreement or arrangement involving gross revenue to or rebates paid by the Company and the Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)75,000 during 2012;
(iif) any material sales agencypartnership, sales representation, distributorship joint venture or franchise agreementother similar agreement or arrangement;
(iiig) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise)) in the past five (5) years;
(ixh) all leases any agreement relating to indebtedness for borrowed money or subleases for real the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or personal property involving annual expense in excess of secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000 25,000 and which may be prepaid on not cancelable by the Company more than thirty (30) days’ notice without premium liability, penalty or penalty) within six monthspremium;
(xi) any Contract material agreement relating to the marketing of the Company’s or the Subsidiaries’ products or services;
(j) any agreement that (A) limits in any material respect the freedom of restricts the Company or any of its Subsidiaries to engage or compete Subsidiary from competing in any line of business or with any Person or in any area or which would so limit the freedom of Parent, restrict the Company or any of their respective Affiliates Subsidiary after the Effective Time or Closing Date;
(Bk) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company agreement with Seller or any of its Subsidiaries his Affiliates, any director or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities officer of the Company or any of its Subsidiaries Subsidiary (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiiother than Seller) or with any material Contract providing for the indemnification by the Company “associate” or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director member of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”) ” (as such terms are respectively defined in Rule Rules 12b-2 and Rule 16a-1 16a-1(e) of the ▇▇▇▇ ▇▇▇Exchange Act) of any such officer, director or beneficial owner; andofficer;
(xivl) any agreement set forth on Schedule 3.16(a)(ii); or
(m) any other Contract required agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to be filed by the Company pursuant and the Subsidiaries, taken as a whole. Each agreement, contract, plan, lease, arrangement or commitment disclosed in any Schedule to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listeddisclosed pursuant to this Section (each, in Section 5.14 a “Material Contract”) is a valid and binding agreement of the Company Disclosure Schedule (including all amendmentsor a Subsidiary, modifications, extensions and renewals thereto and waivers thereunder). All of as the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariescase may be, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelledeffect, rescinded or terminated after the date and none of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norSubsidiary or, to the Knowledge knowledge of the CompanySeller, any other party thereto is in default or breach in any material respect under the terms of any Company such agreement, contract, plan, lease, arrangement or commitment, and, to the knowledge of Seller, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. True and complete copies of each Material Contract except for such instances of default or breach that would not be reasonably likely have been delivered to result in a Material Adverse Effect on the CompanyBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Material Contracts. (a) Section 5.14 Except as disclosed in Schedule 3.10, as expressly contemplated or permitted by the Transaction Agreements or with respect to any Specified Liabilities, none of the Company Disclosure Schedule lists each of the following Contracts, whether written such Companies or oral, to which the Company or any of its Subsidiaries is a party to or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract lease agreement (whether of real or series personal property) providing for annual rentals of related Contracts $500,000 or more that cannot be terminated on not more than one year’s notice without payment by any such Company or Subsidiary of any material penalty;
(ii) any agreement for the purchase, receipt, lease pending purchase of land (including rights to use such land) or use real property by any such Company or Subsidiary which would be material to the operation of the Calmar Business and any agreement for the construction of manufacturing facilities on such land entered into by such Company or Subsidiary;
(iii) any agreement for the purchase of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
real property) providing for either (iiA) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving annual payments by or to the any such Company or Subsidiary of $500,000 or more or (B) aggregate payments by any of its such Company or Subsidiary together with the other Companies and Subsidiaries of more than $50,000 in the aggregate that requires consent of 1,000,000 or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreementmore, in each case that would reasonably cannot be expected to have a Material Adverse Effect terminated on the Companyless than one year’s notice without payment by any such Company or Subsidiary of any material penalty;
(iv) promissory notesany sales, loansagency, agreements, indentures, evidences of indebtedness distribution or other instruments similar agreement providing for the sale by any such Company or relating Subsidiary of materials, supplies, goods, services, equipment or other assets that provides for annual payments to the lending such Company and/or Subsidiary of money, whether as borrower, lender $1,000,000 or guarantor, in amounts greater than more or that provides for one-time payments to such Company and/or Subsidiary of $25,000 in the aggregate1,000,000 or more;
(v) any Contract restricting the payment of dividends or the repurchase of stock material partnership, joint venture or other equitysimilar agreement or arrangement;
(vi) any collective bargaining agreements(A) licensing agreement or arrangement involving the licensing of Intellectual Property Rights (i) providing for annual payments of $250,000 or more or (ii) that is otherwise material to the Calmar Business or (B) any sub-licensing agreement or arrangement of Intellectual Property Rights (i) providing for annual payments of $150,000 or more or (ii) that is otherwise material to the Calmar Business, which is the subject of the licensing agreement or arrangement referred to in Section 3.10(a)(vi)(A) above;
(vii) any written agreement or binding arrangement with a Person who is not a Company Employee in respect of collaboration for any material joint venture, profit sharing, partnership agreements or other similar agreementsresearch and development activities;
(viii) any Contracts agreement that provides for the payment of an annual commission in excess of $100,000 to a Person by any such Company or series of related Contracts Subsidiary;
(ix) any agreement relating to the acquisition or disposition of a material amount of assets outside the ordinary course of any business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
) that (ixA) all leases was entered into since August 1, 1998, or subleases for real (B) relates to currently continuing material obligations of any Company or personal property involving annual expense Subsidiary, other than, in excess each case, agreements entered into exclusively among Sellers and their Affiliates in respect of $1,000 and not cancelable by the transfer of ownership of capital stock of any such Company (without premium or penalty) within six monthsSubsidiary;
(x) any Contract that agreement relating to any guaranty, surety or similar obligation or indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an aggregate outstanding principal amount not exceeding $500,000 or (B) entered into subsequent to the date of this Agreement as permitted by Section 6.01;
(xi) any agreement that limits in any material respect the freedom of the any such Company or Subsidiary (or after Closing, any of its Subsidiaries their Affiliates) to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;area; or
(xii) any agreement material Contract providing for to the indemnification by the Company Calmar Business with such Seller or any Affiliate of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECSeller.
(b) The Company has prior to the date of this Agreement delivered Except as disclosed in Schedule 3.10, each agreement, contract, plan, lease, arrangement or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or commitment required to be listed, in disclosed by such Seller pursuant to this Section 5.14 of the Company Disclosure Schedule 3.10 (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company “Material Contracts are Contract”) is a valid and binding obligations agreement of the Company and its one of such Companies or Subsidiaries, and to as the Knowledge of the Company are binding obligations of the other parties theretocase may be, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice none of an intent to terminate, in whole such Companies or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries noror, to the Knowledge knowledge of the Companysuch Seller, any other party thereto is in default or breach in any respect under the terms of any Company such Material Contract Contract, except for any such instances of default defaults or breach that breaches which have not had and would not be reasonably likely expected to result in have a Material Adverse Effect Effect. No Material Contract has been or, to the knowledge of such Seller, is about to be terminated, except for expiration in accordance with its terms or non-renewal at the end of a term or as disclosed on Schedule 3.04; in particular, to the Companyknowledge of such Seller, such Seller has not given or received any written notice of extraordinary termination to or from any party thereto with respect to any Material Contract.
Appears in 1 contract
Material Contracts. (a) Section 5.14 of the Company Disclosure Except as set forth on Schedule lists each of the following Contracts, whether written 2.11(a) Pilus is not party to or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”):by:
(i) any Contract or series which is a “material contract” (as such term is defined in Item 601(b)(10) of related Contracts for Regulation S-K promulgated by the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contractsSEC);
(ii) any Contract that includes any exclusive dealing arrangement or any arrangement that grants any material sales agencyright of first refusal, sales representationright of first offer, distributorship preemptive right or franchise agreementsimilar right or that limits or purports to limit in any material respect the ability of Pilus (or that, following the consummation of the Merger, would materially restrict the ability of the Surviving Entity or its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any assets or participate in any business anywhere in the world;
(iii) any Contract for the acquisition, sale, lease or series license of properties or assets of Pilus with a value in excess of $5,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 2007;
(iv) any Contract for any acquisition or disposition pursuant to which Pilus is subject to continuing indemnification or earn-out obligations (whether related Contracts involving to environmental matters or otherwise), in each case, that would reasonably be likely to result in payments by Pilus in excess of $5,000;
(v) any collective bargaining Contract;
(vi) any Contract that is a local marketing, joint sales, shared services, management services, independent sales agent, joint development, commercialization, distribution or similar Contract;
(vii) any employment or similar Contract providing for compensation, severance or a fixed term of employment in respect of services performed by any employee or independent contractor of Pilus;
(viii) any partnership, limited liability company or joint venture Contract where Pilus directly or indirectly owns an equity interest in the partnership, limited liability company or joint venture;
(ix) any Contract for capital expenditures in excess of $5,000 for any single item and $10,000 for any project consisting of multiple items;
(x) any Real Property Lease or other Contract relating to Real Property;
(xi) any Contract relating to Indebtedness;
(xii) any Contract entered into by Pilus with an officer, manager, employee, independent contractor or Affiliate of Pilus;
(xiii) any Contract relating to Intellectual Property;
(xiv) any Contract (other than any Contract of the type described in clauses (1) through (13) above) that: (A) involves the payment or potential payment by or to the Company or any of its Subsidiaries Pilus of more than $50,000 10,000 per annum or $20,000 in the aggregate that requires consent aggregate, or (B) cannot be terminated within twelve (12) months after giving notice of termination and without resulting in any material cost, penalty or notice liability to Pilus. Each Contract to which Pilus is a third party of the type described in the event clauses (1) through (14) of this Section 2.11(a) is referred to in this Agreement as a “Material Contract.”
(b) Pilus has delivered or made available to Tauriga true, correct and complete copies of each Material Contract and all amendments, modifications and side letters with respect thereto. Except to the Merger extent that it has previously expired in order accordance with its terms, each Material Contract is valid and in full force and effect in all material respects, and is enforceable against Pilus, and to avoid a breach the Knowledge of Pilus, is enforceable against each other party thereto, in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or termination of, a loss similar laws of benefit undergeneral applicability relating to or affecting creditors’ rights generally, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that by general equity principles.
(c) Except as would not reasonably be expected to have a Material Adverse Effect on the Company;
Pilus: (ivi) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who Pilus is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesnot, and to the Knowledge of Pilus no other party thereto is, in breach or violation of, or in default under, any Material Contract, and (ii) to the Company are binding obligations Knowledge of Pilus, no event has occurred which would result in a breach or violation of, or a default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) No Consent from or to any Governmental Entity or other Person is required in order to maintain in full force and effect any of the Material Contract, other parties thereto, than such consents that have been obtained and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminatethat have been duly given and, in whole or part, any Material Contract has each case copies of such consents have been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, delivered to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyTauriga and Acquisition Sub.
Appears in 1 contract
Material Contracts. (a) Section 5.14 2.08(a) of the Company Disclosure Schedule Schedules lists each of the following Contracts, whether written or oral, to which contracts and other agreements of the Company or any of its Subsidiaries is a party or by which it is bound as (together with all Leases listed in Section 2.10(b) of the date Disclosure Schedules, collectively, the “Material Contracts”), including the dates of this Agreement (each such Contract listed Material Contracts and any amendments or required to be so listed, a “Company Material Contract”):modifications thereof and the parties thereto:
(i) any Contract which requires payments, or series of related Contracts for the purchasecommitments to make payments, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company in excess of $75,000 during any period of twelve (12) consecutive calendar months;
(ii) any Contract that constitutes a settlement, conciliation, or similar contract (A) with any Governmental Authority or (B) pursuant to which the Company has obligations to pay consideration after the date of this Agreement in excess of $75,000;
(iii) any Contract relating to any capital expenditures in excess of $75,000;
(iv) any Contract relating to the sale of any of its Subsidiaries of more than $200,000 in the aggregate (Company’s assets, other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series for consideration in excess of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate100,000;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of any business, a material amount of stock or assets outside the ordinary course of business any other Person or any real property (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(vi) any Contract that constitutes a joint venture, joint development, partnership, or other similar agreement or arrangement with outside third parties or relate to the formation, creation, operation, management or control of any such partnership or joint venture;
(vii) any Contract that contains “most favored nation” obligations, minimum purchase requirements or commitments or similar restrictions binding on the Company;
(viii) any Contract pursuant to which the Company has (x) acquired a license with respect to any Software that forms part of the Company Intellectual Property (other than commercially-available, off the shelf Software with a replacement cost and/or annual license fee of less than $25,000), patents, trademarks or copyrights, (y) granted to any Person an express, and not implied, license to any Software that forms part of the Company Intellectual Property (other than licenses granted to customers in the ordinary course of business), patents, trademarks or copyrights, or (z) agreed not to ▇▇▇ any Person or been granted a covenant not to ▇▇▇ with respect to, consented to the use by and third party of, or agreed not to register any Intellectual Property, including any settlement or coexistence agreement; and
(ix) all leases employment agreements and all other Contracts between or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by among the Company on the one hand and a Shareholder or any Affiliate of a Shareholder (without premium or penaltyother than the Company) within six monthson the other hand;
(x) all agreements that provide for indemnification of any Contract that (A) limits in any material respect the freedom current or former director, officer or employee of the Company or that contain any other similar indemnification obligations to directors, officers or employees of the Company;
(xi) any Contract that places or imposes an Encumbrance on any material asset of the Company;
(xii) excluding any Contract with the Buyer or its Subsidiaries to engage or compete Affiliates, any Contract containing provisions that prohibit the Company from competing in any line of business or with that grant a right of exclusivity to any Person that prevents the Company from entering any territory, market or field or freely engaging in any area business anywhere in the world or which would so limit the freedom of Parent, that otherwise prohibit or restrict the Company or any its officers, directors, managers, owners or employees from soliciting customers or suppliers, or soliciting or hiring employees of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other another Person, in each case entered into outside the ordinary course of business;
(xiii) excluding any material Contracts Contract with the Buyer or its Affiliates, any Contract, the breach or termination of which would reasonably be expected to result in a Material Adverse Effect;
(Axiv) officer or director all agreements that provide for Indebtedness of the Company having an outstanding or any committed amount in excess of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner$100,000; and
(xivxv) all collective bargaining agreements or agreements with any other Contract required labor organization, union or association to be filed by which the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECis a party.
(b) The Except as set forth on Section 2.08(b) of the Disclosure Schedules, the Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listedis not in breach of, or required default under, any Material Contract, except for such breaches or defaults that are immaterial, may be cured without significant financial burden to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiarieswould not, and solely as a result of such breach or default, allow the other party to terminate such Material Contracts (immediately or with the lapse of time). With respect to each Material Contract: (i) to the Knowledge of the Company, no other party is in material default under any such Material Contract; (ii) the Company are binding obligations of the other parties theretohas not given or received any written correspondence with respect to any, and to the Company’s Knowledge, there are no, actual, alleged or potential violation, repudiation, breach or default under such Material Contract; and (iii) there are no other facts that would result in the Company being in breach or default under such Material Contract. No party to any Material Contract has exercised termination rights with respect thereto (and no other party thereto has (or will have due to the Closing) any right to accelerate, modify, cancel or terminate in any respect, any Material Contract), and no party has given notice of any significant dispute with respect to any Material Contract. Each Material Contract is legal, valid and binding on the Company, is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on is enforceable against the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norand, to the Knowledge of the Company, any against the other party parties thereto in accordance with its terms (except as such enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or fraudulent transfer or other similar laws now or hereafter in default effect relating to the enforcement of creditors’ rights generally or breach under general principles of equity).
(c) Section 2.08(c) of the Disclosure Schedules sets out a summary of the material terms of any Company each Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on entered into orally, including the Company's Contract with STMicroelectronics International N.V. or its Affiliates.
Appears in 1 contract
Material Contracts. (a) Section 5.14 Except for the Contracts disclosed in the applicable subsection of Section 4.24 of the Company Disclosure Schedule lists each (the “Material Contracts”), neither the Company nor or any of its Subsidiaries is currently a party to or bound by:
(i) any Contract relating to the following lease of (i) personal property having an annual payment obligation in excess of $500,000 or (ii) any real property;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Contract (or group of related Contracts) for the purchase or license of materials, whether written supplies, goods, services, equipment, technology or oral, to which other assets that provides for either (A) annual payments by the Company or any of its Subsidiaries is a party of $500,000 or more or (B) aggregate payments by which it is bound as the Company or any of the date its subsidiaries of this Agreement (each such Contract listed $500,000 or required to be so listed, a “Company Material Contract”):more;
(iiv) any Contract (or series group of related Contracts Contracts) providing for the purchase, receipt, lease sale by the Company or use any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets (including, without limitation, any agreement or written arrangement with any customer of the Company or any of its Subsidiaries) that provides for either (A) annual payments to the Company or any of its Subsidiaries of $500,000 or more or (B) aggregate payments to the Company or any of its Subsidiaries of $500,000 or more;
(v) any Contract involving future the exclusive license of Intellectual Property owned by the Company or any of its Subsidiaries or other similar Contract that restricts, limits or otherwise affects the Company’s or any of its Subsidiaries’ ability to use or disclose any Intellectual Property Right;
(vi) any partnership agreement, joint venture agreement or other similar Contract;
(vii) except this Agreement, any Contract relating to the acquisition or disposition of any business (whether by merger, sale of membership interests, sale of assets or otherwise);
(viii) any Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in each case, whether incurred, assumed, guaranteed, or secured by any asset) in each case having an outstanding principal amount in excess of $500,000;
(ix) any option to acquire equity or assets or any license agreement (other than nonexclusive, inbound “shrinkwrapped” licenses and other similar licenses for personal computer software that are commercially available on non-discriminatory pricing terms at an individual acquisition cost of $100,000 or less);
(x) any agency, dealer, distributorship, reseller or other similar Contract involving amounts of $500,000 or more;
(xi) any Contract (A) prohibiting or expressly restricting the ability of the Company, any of its Subsidiaries or any of their respective Affiliates from competing with any Person; (B) limiting or restricting, or purporting to limit or restrict, the freedom of the Company, any of its Subsidiaries or any of their respective Affiliates to (1) develop, manufacture, market, distribute, promote, license or sell any products or services or to solicit any customers or prospective customers, (2) extend any line of products or services into other forms or enter into any line of business, products or geographic area or (3) solicit for employment or hire any individual or entity or group of individuals or entities; or (C) that, after the consummation of the transactions contemplated hereby, would have the effect of creating or imposing on, or otherwise making applicable to, the Company, any of its Subsidiaries or any of their respective Affiliates any of the restrictions or limitations described in the foregoing;
(xii) any development or collaboration Contract for development of products or services for the Company or any of its Subsidiaries requiring payments by the Company or any of its Subsidiaries in excess of $500,000;
(xiii) any consulting Contract with an individual consultant or salesperson or consulting or sales Contract with a firm or other organization which are not cancellable without penalty and without more than 90 days’ notice, except those entered into in the ordinary course of business consistent with past practice;
(xiv) any Contract with severance, change in control or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment as a result of the transactions contemplated by this Agreement, termination of employment or both;
(xv) any Contract relating to redemption or purchase or other agreements affecting or relating to the equity interests of the Company or any of its Subsidiaries;
(xvi) any Contract involving a remaining commitment by the Company or any of its Subsidiaries to make capital expenditures in excess of $1,000,000 or make an investment in any third party;
(xvii) any Contract with any holder of more than five percent (5%) of the outstanding equity interests of the Company or with any director or officer of the Company or any of its Subsidiaries (or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such director or officer) or with any Affiliate of any of the foregoing (collectively, the “Company Related Parties”);
(xviii) any Contract with a Governmental Authority as a counterparty;
(xix) any agreement containing a “most favored nation” or similar provision or providing for minimum purchase or sale obligations;
(xx) any agreement, arrangement, commitment or understanding relating to payments upon the change of control of the Company or any of its Subsidiaries;
(xxi) any Contract relating to any settlement or release of any Proceeding (A) pursuant to which the cash amount paid by or to the Company or any of its Subsidiaries of more than exceeds $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time 500,000 or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar imposing continuing obligations or restrictions that are binding on the Company or any of its Subsidiaries Subsidiaries, including injunctive or that would be binding on Parent or its Affiliates after the Effective Timeother non-monetary relief;
(xixxii) agreements by the Company Settlement Agreement; and
(xxiii) any other agreement, commitment, arrangement or any of its Subsidiaries plan not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), made in each case entered into outside the ordinary course of business;
(xii) any business that is material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SEC.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, taken as a whole, and is not otherwise set forth in subsections (i) through (xxii) above.
(b) Each such Material Contract is in full force and effect, and is valid, binding and enforceable against the Company or the Subsidiary of the Company party thereto in accordance with its terms, except in each case as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity, regardless of whether such enforcement is sought in a proceeding at law or in equity. Except as set forth in Section 4.24(b) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company are binding obligations any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the other parties thereto, provisions of such Material Contract and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not could reasonably be expected to haveadversely affect the Company and its Subsidiaries, individually or taken as a whole, in the aggregate, a Material Adverse Effect on the Companymaterial respect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither neither the Company nor any of its Subsidiaries norhas received written notice that it has breached, violated or defaulted under any Material Contract which remains uncured or unresolved. The Company and its Subsidiaries have fulfilled in all material respects all obligations required pursuant to each Material Contract to have been performed by the Company and its Subsidiaries prior to the Knowledge date hereof. The Company or the Subsidiary of the Company, any other Company party thereto is has complied with all material terms contained in default any Material Contract that provide for pricing or breach under other contract terms on a “most favored nation” or similar basis, the terms failure of which could not reasonably be expected to adversely affect the Company and its Subsidiaries, taken as a whole, in any material respect, and no refunds of any past payments are or are expected to become due. The Company has not received any written notice of an intention to terminate any of the Material Contract except for such instances Contracts by any of default the parties to any of the Material Contracts. True and complete copies of the Material Contracts have been provided or breach that would not be reasonably likely made available to result in a Material Adverse Effect on the CompanyParent (or Parent’s Representatives).
Appears in 1 contract
Material Contracts. (ai) Section 5.14 5.1(k)(i) of the Company Disclosure Schedule lists each Letter sets forth, as of the following Contractsdate hereof, whether written or oral, a true and complete list of each Contract to which the Company or any of its Subsidiaries is a party or which binds or affects their respective properties or assets, and which falls within any of the categories listed below (each Contract of the type described in this Section 5.1(k)(i) and Sections 5.1(i)(i) and (i)(vii) of the Company Disclosure Letter, together with this Agreement, the Contracts filed, or incorporated by which it is bound reference, as of exhibits to the Company Reports and each Contract entered into after the date of this Agreement that, if existing on the date hereof, would be of the type described in this Section 5.1(k)(i) or Sections 5.1(i)(i) and (each such Contract listed or required i)(vii) of the Company Disclosure Letter is referred to be so listed, herein as a “Company Material Contract”):
(i1) any Contract that limits or series purports to limit, curtail or restrict, in any respect, the freedom of related Contracts for the Company, any of its Subsidiaries or any of the Company’s current or future Affiliates (including Parent and its Affiliates after the Effective Time) to engage in any line of business, compete with any Person or purchase, receiptsell, lease supply or use of materialsdistribute any product or service, suppliesin each case, goods, services, equipment in any geographic area; or (2) any material Contract that includes “take or pay,” “requirements” or other assets involving future similar provisions obligating a Person to provide the quantity of goods or services required by another Person, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less;
(B) any joint venture, partnership, strategic alliance partnership, limited liability or other similar agreement or arrangement related to the formation, creation, operation, management or control of any partnership or joint venture in which the Company or any of its Subsidiaries owns any interest, except for any such Contract exclusively between or among the Company and any wholly-owned Subsidiary of more than $200,000 in the aggregate Company;
(C) any Contract (other than Contracts involving any Contract with a Significant Customer or Significant Supplier) that involves aggregate expenditures or receipts in excess of $75,000,000, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less;
(D) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company of any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of any material assets or businesses;
(E) any Contract for any acquisition or sale of a Person or any division thereof (whether of equity or of assets or liabilities) (1) with a purchase price in excess of $25,000,000 entered into since June 30, 2008; (2) that contains ongoing “earn-out” or other contingent payment obligations; or (3) that contains ongoing indemnification obligations (excluding customary indemnification as to title, authority and other fundamental representations);
(F) any Contract relating to indebtedness for borrowed money or any financial guaranty (including any guaranty by the Company or its Subsidiaries of any obligations of any third party) (1) in excess of $50,000,000 individually; or (2) relating to the creation of any Lien, other than Permitted Liens, with respect to any material asset of the Company or any of its Subsidiaries;
(G) each lease, sublease, license or Ground Lease for each Material Leased Real Property;
(H) any Contract with any Significant Customer or Significant Supplier;
(I) any Contract with any Governmental Entity;
(J) any Contract with respect to Intellectual Property that is material to the conduct of the Company’s business, as presently conducted;
(K) any employment, retirement, consulting, management, severance, change of control, retention, termination, indemnification or similar compensation or benefits Contract with any director, officer, employee, consultant or independent contractor which Contract provides for aggregate compensation from the Company or any of its Subsidiaries in excess of $1,000,000; except for (1) any such Contract required by applicable Law in any jurisdiction outside the United States; (2) any such employment or consulting Contract with annual payments that do not exceed $100,000; and (3) any such consulting Contract with a Person other than a director, officer, employee or former employee of the Company entered into in the ordinary course of business, including investment banking contracts);business consistent with past practice; or
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(xL) any Contract that (A) limits in any is a “material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC).
(bii) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to haveExcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Effect, each of the Material Contracts is a valid, binding and enforceable obligation of the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, each other party thereto, subject to the Bankruptcy and no written notice to terminate and no written notice of an intent to terminateEquity Exception, in whole accordance with its terms and is in full force and effect, and the Company and each of its Subsidiaries (to the extent they are party thereto or partbound thereby) and, any to the Company’s knowledge, each other party thereto, has performed in all material respects all obligations required to be performed by it under each Material Contract has been received by Contract. Except for matters that, individually or in the aggregate, would not reasonably be expected to result in material liability to the Company or any of its Subsidiaries. Neither Subsidiaries or otherwise interfere in any material respect with the conduct of their respective businesses as currently conducted, (A) the Company and each of its Subsidiaries is not (with or without notice, lapse of time or both) in breach or default under any Material Contract; (B) to the knowledge of the Company, no other party to any Material Contract is (with or without notice, lapse of time or both) in breach or default in any material respect thereunder; and(C) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, has received written notice from any other party thereto is in default or breach under to any Material Contract, and otherwise the terms Company has no knowledge, of any Company intention to cancel or terminate such Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 1 contract
Sources: Merger Agreement (Molex Inc)
Material Contracts. (a) Section 5.14 of Except as set forth on the Seller Disclosure Schedule, the Company Disclosure Schedule lists each of the following Contracts, whether is not a party to or bound by any written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date of this Agreement (each such Contract listed or required to be so listed, a “Company Material Contract”)::
(i) any Contract partnership or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)joint venture Contract;
(ii) Contract limiting the right of the Company to engage in or compete with any material sales agencyPerson in any business or in any geographical area, sales representationor otherwise restricting the Company from carrying on its business or activities, distributorship as the case may be, in its usual and customary manner in any jurisdiction, including, without limitation, restricting the Company from hiring or franchise agreementsoliciting any Person;
(iii) any management, consulting, severance or similar Contract, or employment Contract;
(iv) collective bargaining agreement;
(v) Contract or series of related Contracts involving payments by or to under which the Company has advanced or loaned any of its Subsidiaries of more other Person, other than $50,000 advances to employees in the aggregate that requires consent Ordinary Course of Business;
(vi) agreement or notice indenture relating to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation borrowed money or other remedy underIndebtedness or the mortgaging, pledging or otherwise placing a Lien on any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on asset or group of assets of the Company;
(ivvii) promissory notesguaranty, loansperformance bond or similar agreement, agreementsor any Contract of support, indenturessurety, evidences of indebtedness indemnification or other instruments providing for assumption or relating any similar commitment with respect to the lending obligations, liabilities (whether accrued, absolute, contingent or otherwise) or Indebtedness of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreementsPerson;
(viii) lease or agreement under which the Company is lessee of or holds or operates any Contracts or series personal property owned by any other party, except for any lease of related Contracts relating to personal property under which the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)aggregate annual rental payments do not exceed $25,000;
(ix) all leases other than Contracts related to Rental Equipment, lease or subleases for real agreement under which the Company is lessor of or permits any third party to hold or operate any personal property involving annual expense in excess of $1,000 and not cancelable owned or controlled by the Company (without premium or penalty) within six monthsand which entitles the Company to receive more than $500,000 per annum;
(x) any other than Contracts related to Rental Equipment, Contract that (A) limits or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in any material respect the freedom aggregate in excess of $50,000, other than purchase and sales orders incurred in the Company or any Ordinary Course of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeBusiness;
(xi) agreements by the Company Contract expressly granting a license or any of its Subsidiaries covenant not to acquire assets ▇▇▇ under any Intellectual Property (whether by or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreementsCompany), in each case entered into outside except for license agreements for the ordinary course of businessoff-the-shelf and other software generally commercially available;
(xii) any material Contract providing for warranty agreement with respect to its services rendered or its products sold or leased other than purchase and sales orders incurred in the indemnification by the Company or any Ordinary Course of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businessBusiness;
(xiii) agreement under which it has granted any material Contracts with Person any registration rights (A) officer including demand or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andpiggyback registration rights);
(xiv) sales, distribution, supply or franchise agreement, which involves consideration in the aggregate in excess of $25,000;
(xv) other than Contracts related to Rental Equipment, agreement with a term of more than six months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $25,000 annually;
(xvi) settlement, conciliation or similar agreement with obligations to be satisfied by the Company after the execution date of this Agreement in excess of the related accruals on the Balance Sheet related to such Contracts;
(xvii) Contract regarding voting, transfer or other arrangements related to the Company’s capital stock or warrants, options or other rights to acquire the Company’s capital stock;
(xviii) Contracts to sell or otherwise dispose of any Rental Equipment other than those set forth on Schedule 4.3(e);
(xix) any letters of credit, any currency exchange, commodities or other hedging arrangement or capitalized leases which will not be satisfied at or prior to Closing;
(xx) any Contract that (a) limits or contains restrictions on the ability of the Company to declare or pay dividends on, or to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, or to incur Indebtedness, or to incur or suffer any Lien, to purchase or sell any of assets or properties, to change the lines of business in which it participates or engages or to engage in any Business Combination, or (b) require the Company to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(xxi) Contract to buy or sell spare parts for the Rental Equipment or other assets outside the Ordinary Course of Business; or
(xxii) other than Contracts related to Rental Equipment, any other Contract required to be filed by that requires the Company pursuant to Item 601(a)(10) of Regulation S-K make payments equal to, or which entitles the Company to receive, more than $250,000 per annum. All of the SECcontracts and agreements referred to in Section 4.8(a)(i) through (xx) above are the “Material Contracts.”
(b) The Company has prior Except as set forth in the Seller Disclosure Schedule, each of (i) the Material Contracts, and (ii) the Contracts related to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of Rental Equipment with each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are Major Customers is in full force and effect (except those which are cancelledand is a legal, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually contract or in the aggregate, a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge agreement of the Company, except as limited by bankruptcy, insolvency, reorganization, moratorium and similar laws of general application relating to or affecting the enforcement of creditors’ rights, and there is no default or breach by the Company or, to the Company’s Knowledge, any other party thereto is in default or breach under the terms timely performance of any Company obligation to be performed or paid thereunder or any other material provision thereof. Purchaser’s counsel has been supplied with a true and correct copy of each of the written Material Contract except for such instances Contracts and an accurate description of default each of the oral Material Contracts, together with all amendments, waivers or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companyother changes thereto.
Appears in 1 contract
Material Contracts. (a) Section 5.14 5.12 of the Company Seller Disclosure Schedule lists each sets forth a true, correct and complete list of all of the Contracts (including amendments or modifications thereto in effect as of the date hereof) of the following Contracts, whether written or oral, types to which the a Company is a party, or by which a Company or any of its Subsidiaries properties or assets is bound:
(a) any Contract, the performance of which has resulted in expenditures by, or receipts of, such Company of more than One Million Dollars ($1,000,000) per fiscal year on average since January 1, 2021 or is reasonably expected to result in expenditures by, or receipts of, such Company of more than One Million Dollars ($1,000,000) in fiscal year 2023;
(b) any Contract under which a Company is a party lessee of or holds or operates any equipment, vehicle, or other tangible personal property that is owned by which it another Person and that (i) has resulted in or that is bound as reasonably expected to result in expenditures by such Company of more than One Million Two Hundred and Fifty Thousand Dollars ($1,000,000) or (ii) extends for a term of more than one-hundred eighty (180) calendar days following the date of this Agreement Agreement;
(each such c) any Contract listed that includes any right of first offer or refusal or other similar term favoring any other Person;
(d) any Contract (i) relating to the creation, formation, operation, management or control of, or (ii) containing a put right, call right, tag-along right or drag-along right, in respect of, any partnership, joint venture or other similar entity to which a Company is a party to;
(e) any material Contract under which a Company outsources the performance of any services required to be so listedperformed by such Company under any other Contract (excluding Provider Contracts);
(f) (i) any Contract relating to the acquisition by a Company of any business, Equity Interests, unit, division, or all or substantially all assets of any other Person (whether by merger, sale of Equity Interests, sale of assets, or otherwise), or (ii) any Contract pursuant to which a Company has continuing indemnification, “earn-out” or other contingent payment Liabilities, including Contracts providing for indemnification to or from any Person with respect to Liabilities relating to any current or former business of such Company or any predecessor in interest, in each case, in connection with any such purchase or sale;
(g) any Contract relating to the sale or other disposition by a Company of any business, Equity Interests, unit, division, or material assets (whether by merger, consolidation, divestiture, sale of Equity Interests, sale of assets, or otherwise);
(h) any Contract that constitutes Indebtedness for borrowed money (whether incurred, assumed or guaranteed) by, or the placing of a Lien or similar instrument such as a mortgage, pledge, indenture or security agreement (other than a Permitted Lien) on any assets of, a “Company Material Contract”):Company;
(i) any Contract relating to any joint venture, limited liability company, partnership, strategic alliance, or series similar relationship with another Person;
(j) any Contract under which a Company has, directly or indirectly, made any advance, loan, or extension of related Contracts for the purchasecredit to, receipt, lease or use of materials, supplies, goods, services, equipment capital contribution or other assets involving investment of more than One Million Dollars ($1,000,000) in, any other Person;
(k) any Contract, other than any Benefit Plan, with (i) any current or former officer or director of a Company or (ii) any other current or former Employee of, independent contractor of, or consultant to a Company providing for, in the case of this clause (ii), aggregate future payments by or to the such Company or any of its Subsidiaries of more than One Million Dollars ($200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts1,000,000);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iiil) any Contract or series with any Affiliate of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(m) any Contract that (i) limits the freedom of a Company to compete with, or to solicit customers or suppliers from, any Person or in any geographical area or that otherwise restricts the marketing, distribution or sale of its or their products or services in any respect, (ii) provides “most favored nation” status to any party, (iii) requires the purchase of any product or service exclusively from a single party or grants exclusive rights to marketing or distribution to a single party or (iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatecontains any minimum purchase obligations binding on a Company;
(vn) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition ability of a material amount of assets outside the ordinary course of business (in each caseCompany to solicit or hire any other Person, whether by merger, sale of stock, sale of assets other than under any confidentiality agreements and any other agreements with suppliers or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities vendors of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xiio) any Contract with any Governmental Authority;
(p) any Plan-to-Plan Contract;
(q) any value-based Provider Contracts relating to at least 5,000 Enrollees that involve shared risk arrangements to which a Company is a party as a cedent, and any such terminated or expired Contracts under which there remains any outstanding Liability;
(r) any Contract that relates to any off-balance sheet arrangements, loss sharing or loss guarantee and contingent purchase transactions, special purpose entity transactions or other similar transactions of a Company, and any hedging, derivatives or similar Contracts or arrangements;
(s) any collective bargaining or similar written labor-related agreement or other Contract with a union, works counsel or other labor organization to which a Company is a party;
(t) any Contract relating to the settlement of any Proceedings under which a Company has continuing post-Closing obligations or Liabilities equal to or greater than Two Hundred Thousand ($200,000);
(u) any material Contract providing for the indemnification by the relating to Intellectual Property or Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any IT Systems, other Person, than (A) non-exclusive licenses granted to customers in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company business and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record licenses for off-the-shelf shrinkwrap, clickwrap or beneficial owner similar commercially available non-custom Software with aggregate fees of five percent or more of the voting securities of Company; or less than One Million Dollars (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) or “associates” (or members of any of their “immediate family”$1,000,000) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner“IP Licenses”); and
(xivv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10which a Company manages the business of another Person in exchange for a management fee. Such Company has made available to Purchaser a true, complete and correct copy (or, with respect to any oral Contract, a correct written summary of the terms and conditions of such oral Contract) of Regulation S-K of the SEC.
(b) The each such Contract with respect to such Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, set forth or required to be listed, in set forth on Section 5.14 5.12 of the Company Seller Disclosure Schedule (including all amendments, modifications, extensions exhibits, and renewals thereto and waivers thereunderschedules) (collectively, with the Real Property Leases, the “Material Contracts”). All Except as set forth on Section 5.12 of the Company Seller Disclosure Schedule, each Material Contracts are Contract is valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelledand constitutes a legal, rescinded valid, and binding obligation of a Company and, to the Company’s Knowledge, the other party or terminated after the date of this Agreement parties thereto, enforceable against such Company and such other party or parties in accordance with their its terms), except where subject to the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Enforceability Limitations. Neither Company, and no written notice to terminate and no written notice of an intent to terminateas applicable, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company’s Knowledge, any other party thereto is in default or breach under the terms of any Company to a Material Contract except for is in, or is alleged to be in, material breach of or default under such instances Material Contract. Since the Look-Back Date, neither Company has received any written notice of material breach or material default or breach that would not be reasonably likely to result in a under any Material Adverse Effect on the CompanyContract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bright Health Group Inc.)
Material Contracts. (a) Section 5.14 5.12(a) of the Company Disclosure Schedule lists Schedules sets forth a true, correct and complete list of, and the Company has made available to SPAC (including written summaries of oral Contracts) true, correct and complete copies of, each of the following Contracts, whether written or oral, Contract to which the any Target Company or any of its Subsidiaries is a party or by which it is any Target Company, or any of its properties or assets, are bound as of the date of this Agreement (each such Contract listed or required to be so listedset forth on Section 5.12(a) of the Company Disclosure Schedules, a “Company Material Contract”):) that:
(i) any Contract or series contains covenants that limit the ability of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the such Target Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or to sell or provide any service or product to or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants, exclusivity restrictions, rights of first refusal or first offer or most-favored pricing clauses (in each case other than pursuant to confidentiality arrangements entered into in the ordinary course of business) or (B) to purchase or acquire an interest in any other Person;
(ii) relates to the formation, creation, operation, management or control of any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement;
(iii) evidences Indebtedness of the type referred to in clauses (a) through (e) of the definition thereof of such Target Company having an outstanding principal amount in excess of $500,000;
(iv) involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices other than those entered into in the ordinary course of business of the Target Companies on behalf of a customers or any ordinary course transactions that are settled on a daily basis;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or shares or other equity interests of any Target Company or another Person in each case with an aggregate value in excess of $1,000,000;
(vi) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(vii) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or set of related Contracts of at least $500,000 per year or $2,500,000 over the life of such Contracts;
(viii) pursuant to which would so limit any Target Company has been granted from a third party any material license, right, immunity or authorization to use or otherwise exploit any material Intellectual Property, excluding (A) Incidental Licenses, (B) “shrink wrap,” “click wrap,” “off the freedom shelf” or other licenses for generally commercially available software or hosted services, and (C) licenses for uncustomized software that is commercially available to the public generally with one-time or annual license, maintenance, support and other fees of Parentless than $100,000;
(ix) pursuant to which any Target Company has (A) acquired from any third party any ownership right to any material Intellectual Property, excluding Contributor Agreements, or (B) transferred to any third party any ownership right to any material Intellectual Property;
(x) pursuant to which any Target Company has granted to any third party any material license, right, immunity or authorization to use or otherwise exploit any Company Owned IP, excluding Incidental Licenses;
(xi) obligates the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $250,000 other than indemnities or warranties provided in the ordinary course in connection with sales of the Target Companies’ products and services;
(xii) is an employment, severance, retention, change in control or other Contract (excluding customary form offer letters and other standard form agreements entered into in the ordinary course of business) with any employee or individual independent contractor of the Company or any Target Company who receives annual base cash salary of $200,000 or more;
(xiii) is a labor agreement, collective bargaining agreement, or other labor-related agreement or arrangement with any labor union, labor organization, works council or other employee-representative body;
(xiv) other than under its Organizational Documents, is between any (A) Target Company and (B) any directors, officers or employees of a Target Company (other than at-will employment, assignment of Intellectual Property or confidentiality arrangements entered into in the ordinary course of business) or any of their respective Affiliates after or other Related Person, including all non-competition, severance and indemnification agreements;
(xv) obligates the Effective Time Target Companies to make any capital commitment or expenditure in excess of $1,000,000 (Bincluding pursuant to any joint venture);
(xvi) contains relates to a settlement of any material exclusivity, “most favored nation”, rights Action requiring payments in excess of first refusal, rights of first negotiation $200,000 or similar under which any Target Company has outstanding obligations (other than customary confidentiality or restrictions that are binding on the non-disparagement obligations);
(xvii) provides another Person (other than another Target Company or any manager, director or officer of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Timeany Target Company) with a power of attorney;
(xixviii) agreements by the Company is with a Material Customer or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;Material Supplier; or
(xiixix) any material Contract providing for that will be required to be filed with the indemnification by the Company Registration Statement under applicable SEC requirements or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Item 601(a)(10Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K of under the SECSecurities Act if the Company was the registrant.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except Except where the failure to be valid and binding and failure, individually or in full force and effect the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on the Company, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any (i) each Company Material Contract has been received by is valid and binding and enforceable against the Target Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norparty thereto and, to the Knowledge of the Company, any each other party thereto thereto, and is in default full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (ii) the consummation of the Transactions will not affect the validity or breach under the terms enforceability of any Company Material Contract except for such instances of Contract, (iii) no Target Company is in breach or default or breach that would not be reasonably likely and, to result in a Material Adverse Effect on the Company’s Knowledge, no event has occurred that with the passage of time or giving of notice or both would constitute a breach or default by the Target Company party thereto or permit termination or acceleration by the other party thereto under any Company Material Contract, (iv) to the Knowledge of the Company, no other party to any Company Material Contract is in breach or default, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by any Target Company, under any Company Material Contract, (v) no Target Company has received or served written or, to the Knowledge of the Company, oral, notice of an intention by any party to any Company Material Contract to terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect the Target Companies, and (vi) no Target Company has waived any rights under any Company Material Contract.
Appears in 1 contract
Sources: Business Combination Agreement (Athena Technology Acquisition Corp. II)
Material Contracts. (a) Section 5.14 5.11 of the Company Disclosure Schedule lists sets forth an accurate and complete list of each of the following Contracts, whether written or oral, Contracts to which the any Acquired Company or any of its Subsidiaries is a party or by which it is any assets of any Acquired Company are bound as of the date of this Agreement (each such Contract listed or required to be so listedcollectively, a “Company Material ContractContracts”):
(i) any Contract or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts)with a Material Customer;
(ii) any material sales agency, sales representation, distributorship or franchise agreementContract with a Material Supplier;
(iii) any Contract pursuant to which any Acquired Company is bound by any covenant not to compete (other than pursuant to any radius restriction contained in any lease, reciprocal easement or series of related Contracts involving payments by development, construction, operating or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such similar agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company);
(iv) promissory notesany lease, loanssublease or similar Contract with any Person pursuant to which any Acquired Company is a lessor, agreementssublessor, indentureslessee or sublessee of any tangible personal property, evidences or any portion of indebtedness or other instruments providing real property (including the Leased Real Property), the provides for or relating to the lending payments in excess of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate100,000;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equitywarehousing Contract;
(vi) any collective bargaining agreementsContract with a sales broker;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreementsContract pursuant to which an Acquired Company has incurred any Indebtedness;
(viii) any Contracts or series of related Contracts relating to Contract entered into by an Acquired Company for the acquisition or disposition of a material amount sale of assets outside owned or leased by any Acquired Company with a book value in excess of $100,000 individually or $250,000 in the aggregate (other than Inventory sales in the ordinary course of business business) (in each caseA) that contains any outstanding obligations of any Acquired Company or (B) that was entered into on or after January 1, whether by merger, sale of stock, sale of assets or otherwise)2020;
(ix) all leases any Contract relating to any joint venture, partnership or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six monthssimilar arrangement;
(x) any Contract that (A) limits in for the employment, hire, retention or consulting of any material respect the freedom officer, employee, consultant, or independent contractor of the Company Acquired Companies, other than offer letters in form(s) that have been made available to Purchaser, and all Contracts providing for any change-in-control payment, transaction bonus, retention bonus or any of its Subsidiaries to engage or compete in any line of business or similar payment obligations with any Person upon a sale of all or in any area a material portion of the Acquired Companies’ consolidated assets or which would so limit a change of control of the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeAcquired Companies;
(xi) any Contract with any staffing agency, temporary employee agency, professional employer organization or similar company or service provider;
(xii) all collective bargaining agreements by the or agreements with any union to which any Acquired Company is a party or is otherwise bound;
(xiii) IP License Contracts and any of its Subsidiaries other Contract (including covenants not to acquire assets sue) relating to the ownership, registration, use or securities enforcement of a third party (including standstill agreementsA) or agreements any Company Intellectual Property (excluding assignments of Company Intellectual Property executed by a third party not to acquire assets or securities employees of the Acquired Companies in the ordinary course of business in the form provided by Seller to Purchaser and non-exclusive licenses of Company or Intellectual Property granted by any of its Subsidiaries (including standstill agreements), Acquired Company to customers in each case entered into outside the ordinary course of business) or (B) any other Intellectual Property that is used in and material to the business of the Acquired Companies;
(xiixiv) any material distributorship, dealer, sales, advertising, agency, promotional services, retail promotional management, marketing platform, manufacturer’s representative or other similar Contracts;
(xv) any Contract entered into by an Acquired Company (A) that contains any outstanding obligations of any Acquired Company or (B) since January 1, 2020, in each case, for any settlement agreement in respect of a Proceeding;
(xvi) any Contract providing for the indemnification by the Company or any of its Subsidiaries holding harmless of any officer, manager, employee, independent contractor or other Person;
(xvii) any Contract including a “most favored nations” or “exclusivity” provision;
(xviii) any outstanding power of attorney empowering any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations to act on behalf of any Acquired Company;
(xix) any Contract for the acquisition or disposition of an Entity or a division of an Entity made since January 1, 2020; and
(xx) any Contract, not otherwise identified above, pursuant to which any Acquired Company is obligated to make payments in excess of $100,000 individually or $250,000 in the aggregate (other Person, than Inventory sales in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECsuch Contract.
(b) The Company has prior Sellers have made available to the date of this Agreement delivered or Made Available to Parent Purchaser accurate and complete and accurate copies of each Company Material written Contract listed, or required to be listed, set forth in Section 5.14 5.11(a) of the Company Disclosure Schedule (including all written amendments, modifications, extensions modifications and renewals thereto supplements thereto) and waivers thereunder)complete descriptions of all material terms of any oral Contracts described therein. All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiariesvalid, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminateare enforceable against the Acquired Company party thereto, in whole or part, any Material Contract has been received by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries norand, to the Knowledge of Sellers, against the Companyother parties thereto. The applicable Acquired Company has performed all material obligations required to be performed by it to date under the Material Contracts to which it is a party, and such Acquired Company is not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder. To the Knowledge of Sellers, no other party to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect under any Material Contract. No Acquired Company has received any notice (whether written, or to the Knowledge of Sellers, otherwise) of the intention of any other party thereto is in default to a Material Contract to terminate any Material Contract prior to the expiration of the term (including renewal terms) thereof, or breach under to amend the material terms of any Company Material Contract except for such instances outside of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the Companyordinary course of business.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (ProFrac Holding Corp.)
Material Contracts. (a) Except for agreements, contracts, plans, ------------------- leases, arrangements or commitments disclosed in Section 5.14 3.11 of the Company Seller Disclosure Schedule lists each (with true and correct copies or summaries of the following Contracts, whether written or oral, oral agreements provided to which the Company Buyer) or any other schedule to this Agreement and except for agreements, contracts, plans, leases, arrangements or commitments of its Subsidiaries is a party or by which it is bound Seller that do not relate to the Business, as of the date of this Agreement (each such Contract listed neither the Company nor Seller is a party to or required to be so listed, a “Company Material Contract”):subject to:
(i) any Contract lease;
(ii) any contract, agreement, arrangement or series commitment which is not cancelable by the Company without penalty on less than ninety (90) days notice;
(iii) any contract, agreement, arrangement or commitment relating to indebtedness for borrowed money or the deferred purchase price of related Contracts property (whether incurred, assumed, guaranteed or secured by any asset), except for those relating to indebtedness incurred in the ordinary course of business in an amount not exceeding $10,000;
(iv) any contract, agreement, arrangement or commitment for the purchase, receipt, lease or use purchase of materials, supplies, goods, services, equipment or other assets involving future providing for annual payments by or to the Company of $10,000 or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatemore;
(v) any Contract restricting the payment of dividends or the repurchase of stock sales, distribution, licensing or other equitysimilar contract, agreement, arrangement or commitment providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets providing for annual payments to the Company of $10,000 or more;
(vi) any collective bargaining agreementsagency, dealer, sales representative or other similar contract, agreement, arrangement or commitment;
(vii) any material joint ventureemployment, profit sharingconsulting, partnership agreements severance or other similar agreementsnoncompetition contract, agreement, arrangement or commitment;
(viii) any Contracts partnership, joint venture or series of related Contracts relating to the acquisition other similar contract, agreement, arrangement or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise)commitment;
(ix) all leases any license, franchise or subleases for real similar contract, agreement, arrangement or personal property involving annual expense commitment or contract, agreement, arrangement or commitment in excess respect of $1,000 and not cancelable similar rights granted to or held by the Company (without premium or penalty) within six monthsCompany;
(x) any Contract contract, agreement, arrangement or commitment or other document that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to engage in the Business or to compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective TimeClosing Date;
(xi) agreements by any royalty, dividend or similar arrangement based on the Company revenues or profits of the Business or any of its Subsidiaries not to acquire assets contract or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of businessagreement involving fixed volume arrangements;
(xii) any material Contract providing for the indemnification by the Company acquisition, merger or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of businesssimilar agreement;
(xiii) any material Contracts contract, agreement, commitment or arrangement with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010governmental entity; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; andor
(xiv) any other Contract required contract, agreement, arrangement or commitment not made in the ordinary course of business that is material to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K of the SECtaken as a whole.
(b) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete Each contract, agreement, arrangement and accurate copies of each Company Material Contract listed, or required to be listed, commitment disclosed in Section 5.14 3.11 of the Company Seller Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is a valid and binding obligations agreement of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are is in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyeffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by neither the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries Seller, nor, to the Knowledge knowledge of the CompanySeller, any other party thereto is in default or breach in any material respect under the terms of any such contract, agreement, arrangement or commitment. Seller has no knowledge of any oral or written notice to terminate any such contract, agreement, arrangement or commitment. The contracts, agreements, arrangements and commitments listed in Section 3.11 of the Seller Disclosure Schedule comprise all of the material contracts, agreements, arrangements and commitments entered into by Seller or the Company Material Contract except for such instances of default or breach that would not be reasonably likely relate to result in a Material Adverse Effect on the CompanyBusiness.
Appears in 1 contract
Material Contracts. (a) Section 5.14 4.19(a) of the Company Disclosure Schedule lists each sets forth a true and complete list, as of the date of this Agreement, of the following Contracts, whether written or oral, Contracts to which the Company or any of its Subsidiaries is a party (other than any Contract between the Company and one or by which it is bound as more of the date of this Agreement (each such Contract listed its Subsidiaries or required to be so listed, a “between Company Material Contract”Subsidiaries):
(i) any Contract relating to the employment of, or series the performance of related Contracts for services by (A) any director, employee or consultant earning an annual salary, or, in the purchasecase of a consultant, receiptreceiving annual compensation, lease from the Company or use one of materialsits Subsidiaries in excess of $75,000, supplies, goods, services, equipment (1) the terms of which obligate or other assets involving may in the future payments by or to obligate the Company or any of its Subsidiaries to make any severance, termination or similar payment to any such director, employee, or consultant, or (2) pursuant to which the Company or any of more than $200,000 in its Subsidiaries may be obligated to make any bonus or similar payment to any such director, employee or consultant, or (B) any former director, employee or consultant to whom clause (A) would have applied if he or she had remained employed or engaged by the aggregate Company or one of its Subsidiaries;
(ii) any Contract relating to any partnership, joint venture, material research and development project or other similar arrangement;
(iii) any shareholders, investors rights, registration rights or similar Contract or arrangement;
(iv) any Contract with sole source or single source suppliers of material tangible products or services or pursuant to which the Company or any of its Subsidiaries has agreed to purchase a minimum quantity of goods relating to any product or product candidate or has agreed to purchase goods relating to any product or product candidate exclusively from a certain party;
(v) any Contract containing “most favored nation” provisions, any exclusive dealing arrangement or any arrangement that grants any right of first refusal, first offer, first negotiation or similar preferential right that is material to the Company and its Subsidiaries, taken as a whole;
(vi) any Contract (other than Contracts involving payments to the Company purchase orders entered into in the ordinary course of business, including investment banking contracts);
business with a term of no longer than four months) (i) that obligates the Company (together with its Subsidiaries) to make aggregate payments in excess of (A) $100,000 in the current or any future calendar year or (B) $200,000 in the aggregate or (ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or pursuant to which the Company or any of its Subsidiaries has continuing obligations or interests involving the payment of more than $50,000 in royalties or other amounts calculated based upon the aggregate revenues or income of the Company or any of its Subsidiaries that requires consent of or notice to a third party in the event of or with respect are material to the Merger in order to avoid Company and its Subsidiaries taken as a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreementwhole, in each case that would reasonably be expected to have a Material Adverse Effect on is not terminable by the Company;
(iv) promissory notes, loans, agreements, indentures, evidences Company or its Subsidiaries without penalty in excess of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater $50,000 without more than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements60 days’ notice;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreementsContract that the Company would be required to disclose under Item 404(b) of Regulation S-K promulgated by the SEC;
(viii) any Contracts or series of related Contracts relating to Contract for the acquisition or disposition of a material amount assets or business of assets outside any of the Company or any of its Subsidiaries (other than dispositions of inventory in the ordinary course of business) or for the acquisition, directly or indirectly, of a material portion of the assets or business of any other Person (in each case, whether by merger, sale of stock, sale of stock or assets or otherwise), in each case with a purchase price in excess of $100,000;
(ix) all leases or subleases for real or personal property involving annual expense in excess any individual Contract relating to more than $25,000 of $1,000 and not cancelable by Indebtedness of the Company (without premium or penalty) within six monthsany of its Subsidiaries;
(x) any Contract that (A) limits containing any provision or covenant limiting in any material respect the freedom ability of the Company or any of its Subsidiaries to (A) sell any products or services of or to any other Person or in any geographic region, (B) engage or compete in any line of business or (C) compete with or to obtain products or services from any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;Person; or
(xi) agreements by the Company or any Contract not disclosed in response to any of its Subsidiaries not to acquire assets or securities of clauses (i) through (x) that is a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any “material Contract providing for the indemnification by the Company or any of its Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate contract” (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract required to be filed by the Company pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC) (all Contracts of the type described in this Section 4.19(a) being referred to herein as “Material Contracts”).
(b) The Company has made available to Parent a true and complete copy of each Material Contract. Except for any Material Contract that has expired by its terms or that has been terminated in accordance with the terms thereof by the Company in the ordinary course of business without payment of any premium or penalty that has not been paid in full prior to the date calculation of Cash pursuant to Section 2.10(a) of this Agreement delivered or Made Available to Parent complete and accurate copies of Agreement, each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is valid and binding obligations of the Company and its Subsidiaries, and to the Knowledge of the Company are binding obligations of the other parties thereto, and are in full force and effect (except those which are cancelled, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to be valid and binding and in full force and effect effect. Except as has not had resulted and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by neither the Company or nor any of its Subsidiaries. Neither , nor, to the Company’s Knowledge, any other party to a Material Contract, has violated in any respect any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material breach under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries norhas received notice that it has breached, to the Knowledge of the Company, violated or defaulted under any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 1 contract
Material Contracts. (a) Section 5.14 Except as set forth on Schedule 4.10 of the Company Oasis Disclosure Schedule lists each of the following ContractsSchedules, whether written or oral, to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date Execution Date, none of this Agreement (each such the Oasis Parties are a party to or bound by any Contract listed used in the Oasis Business or required to be so listed, a “Company Material Contract”):included in the Oasis Assets that:
(i) contains any Contract provision or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company covenant which materially restricts any Oasis Party or any of its Subsidiaries of more than $200,000 Affiliates thereof from engaging in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of businessany lawful business activity or competing with any Person or operate at any location, including investment banking contracts)any preferential rights, rights of first refusal or rights of first offer granted to third parties;
(ii) 5. relates to the creation, incurrence, assumption, or guarantee of any material sales agencyindebtedness for borrowed money, sales representationliabilities or other obligations by any Oasis Party or any of their respective Subsidiaries (including so-called take-or-pay or keepwell agreements) or %5. creates a capitalized lease obligation (except, distributorship or franchise agreementin the cases of clauses (A) and (B), any such Contract with an aggregate principal amount not exceeding $50,000);
(iii) is in respect of the formation of any Contract partnership, joint venture or series of related Contracts involving payments by other arrangement or otherwise relates to the Company joint ownership or operation of the assets owned by any of the Oasis Parties or any of its their respective Subsidiaries or which requires any Oasis Party or any of more than $50,000 their respective Subsidiaries to invest funds in the aggregate that requires consent of or notice to a third party in the event of make loans to, or with respect to the Merger in order to avoid a breach or termination purchase any securities of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Companyanother Person;
(iv) promissory notesrelates to any commodity or interest rate swap, loans, agreements, indentures, evidences of indebtedness cap or collar agreements or other instruments providing for similar hedging or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregatederivative transactions;
(v) is a bond, letter of credit, guarantee or security deposit posted (or supported) by or on behalf of any Contract restricting the payment Oasis Party or any of dividends or the repurchase of stock or other equitytheir respective Subsidiaries;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to includes the acquisition or disposition of a material amount of assets outside or properties or the ordinary course sale of business (assets or properties, in each case, case with a book value in excess of $50,000 (whether by merger, sale of stock, sale of assets or otherwise);
(ixvii) involves a sharing of profits, losses, costs or liabilities by any Oasis Party or any of their respective Subsidiaries with any other Person;
(viii) relates as of the Execution Date to %5. the purchase of materials, supplies, goods, services, equipment or other assets, %5. the purchase or sale of electrical power, (C) the purchase, sale, transportation or storing of natural gas or the purchase, or storing of, natural gas or the provision of services related thereto or (D) the construction of capital assets, (E) the management of any part or all leases of the Oasis Business or subleases Oasis Assets, (F) services provided to or in connection with, the Oasis Business, (G) the paying of commissions related to the Oasis Business, (H) advertising contracts and (I) other similar types of Contracts of the kind listed in (A) through (H) above, in the cases of clauses (A), (B), (C), (D), (E), (F), (G), and (H) that provides for real annual payments by or personal property involving annual expense to OPH or Oasis Power or any of their respective Subsidiaries in excess of $1,000 and not cancelable 50,000;
(ix) provides for indemnification of one or more Persons by OPH or Oasis Power or any of their respective Subsidiaries or the Company (without premium assumption of any Tax or penalty) within six monthsother liability of any Person;
(x) any Contract that (A) limits in any material respect otherwise involves the freedom of the Company annual payment by or any of its Subsidiaries to engage OPH or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company Oasis Power or any of their respective Affiliates after the Effective Time Subsidiaries that cannot be terminated on 90 days or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation less notice without payment by OPH or similar obligations or restrictions that are binding on the Company Oasis Power or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements), in each case entered into outside the ordinary course of business;
(xii) any material Contract providing for the indemnification by the Company or any of its their respective Subsidiaries of any Person or under which the Company or any of its Subsidiaries has guaranteed any liabilities or obligations of any other Person, in each case entered into outside the ordinary course of business;
(xiii) any material Contracts with any (A) officer or director of the Company or any of its Subsidiaries (or any other employee who is one of the twenty most highly compensated employees of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; (B) record or beneficial owner of five percent or more of the voting securities of Company; or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial ownerpenalty; and
(xivb) any other Contract Seller has made available to Buyer a true and correct copy of each contract required to be filed by the Company pursuant to Item 601(a)(10) of Regulation S-K disclosed on Schedule 4.10 of the SECOasis Disclosure Schedules (all such Contracts being referred to as the “Oasis Contracts”).
(bc) The Company has prior to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Each Oasis Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are is a valid and binding obligations obligation of the Company and its OPH or Oasis Power or their respective Subsidiaries, and is in full force and effect and enforceable in accordance with its terms against such entity and, to the Knowledge of the Company are binding obligations of Seller, the other parties thereto, and are except, in full force and effect (except those which are cancelledeach case, rescinded or terminated after the date of this Agreement in accordance with their terms), except where the failure to as enforcement may be valid and binding and in full force and effect has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companylimited by Creditors’ Rights, and no written notice defenses, off-sets or counterclaims have been asserted or, to terminate and no written notice the knowledge of an intent to terminateSeller, in whole or part, threatened by any Material Contract other party thereto nor has been received by the Company any Oasis Party or any of its Subsidiaries. Neither their respective Subsidiaries executed any waiver that waives any material rights thereunder.
(d) None of the Company nor Oasis Parties or any of its their respective Subsidiaries nor, to the Knowledge of the CompanySeller, any other party thereto to any Oasis Contract is in default or breach in any material respect under the terms of any Company Material Oasis Contract except and no Event has occurred that with the giving of notice or the passage of time or both would constitute a breach or default in any material respect by OPH or Oasis Power or any of their respective Subsidiaries or, to the Knowledge of Seller, any other party to any Oasis Contract, or would permit termination, modification or acceleration under any Oasis Contract.
(e) None of the Oasis Parties or any of their respective Subsidiaries (i) have received any material prepayment, advance payment, deposits or similar payments, and have no refund obligation, with respect to any electric power, gas or other hydrocarbons purchased, sold or transported by or on behalf of OPH or Oasis Power or their respective Subsidiaries with respect to the Oasis Business; and (ii) none of the Oasis Parties or any of their respective Subsidiaries have received any material compensation or deposits for such instances the sale of default electric power or breach natural gas which would be subject to any refund or create any repayment obligation by Oasis Power, and to the Knowledge of Seller, there is no basis for a claim that would not be reasonably likely a refund is due with respect to result in a Material Adverse Effect on the CompanyOasis Business.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Spark Energy, Inc.)
Material Contracts. (a) Section 5.14 As of the Company Disclosure Schedule lists each date of the following Contractsthis Agreement, whether written or oral, to which neither the Company or nor any of its Subsidiaries is a party to or bound by which it is bound as of the date of this Agreement (each such Contract listed any contract, arrangement, commitment or required to be so listed, a “Company Material Contract”):understanding that:
(i) any Contract materially limits or series of related Contracts for the purchase, receipt, lease or use of materials, supplies, goods, services, equipment or other assets involving future payments by or to the Company or any of its Subsidiaries of more than $200,000 in the aggregate (other than Contracts involving payments to the Company entered into in the ordinary course of business, including investment banking contracts);
(ii) any material sales agency, sales representation, distributorship or franchise agreement;
(iii) any Contract or series of related Contracts involving payments by or to the Company or any of its Subsidiaries of more than $50,000 in the aggregate that requires consent of or notice to a third party in the event of or with respect to the Merger in order to avoid a breach or termination of, a loss of benefit under, or triggering a price adjustment, right of renegotiation or other remedy under, any such agreement, in each case that would reasonably be expected to have a Material Adverse Effect on the Company;
(iv) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, whether as borrower, lender or guarantor, in amounts greater than $25,000 in the aggregate;
(v) any Contract restricting the payment of dividends or the repurchase of stock or other equity;
(vi) any collective bargaining agreements;
(vii) any material joint venture, profit sharing, partnership agreements or other similar agreements;
(viii) any Contracts or series of related Contracts relating to the acquisition or disposition of a material amount of assets outside the ordinary course of business (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) all leases or subleases for real or personal property involving annual expense in excess of $1,000 and not cancelable by the Company (without premium or penalty) within six months;
(x) any Contract that (A) limits otherwise materially restricts in any material respect the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time or (B) contains any material exclusivity, “most favored nation”, rights of first refusal, rights of first negotiation or similar obligations or restrictions that are binding on the Company or any of its Subsidiaries or that would be binding on Parent or its Affiliates after the Effective Time;
(xi) agreements by the Company or any of its Subsidiaries not to acquire assets or securities of a third party (including standstill agreements) or agreements by a third party not to acquire assets or securities of the Company or any of its Subsidiaries (including standstill agreements)or, in each case entered into outside after the ordinary course of business;
(xii) any material Contract providing for Effective Time, the indemnification by the Company Surviving Corporation or any of its Subsidiaries of any Person or under which the Company purportedly Parent or any of its Subsidiaries has guaranteed Subsidiaries) from (A) engaging or competing in any liabilities material line of business, in any geographical location or obligations with any Person, (B) selling any products or services of or to any other Person or in any geographic region or (C) obtaining products or services from any Person, in each case entered into outside the ordinary course of business;
(xiiiii) includes any material Contracts “most favored nations” terms and conditions (including, without limitation, with respect to pricing), any material exclusive dealing arrangement, any material arrangement that grants any material right of first refusal or material right of first offer or similar material right or that limits or purports to limit in any material respect the ability of the Company or its Subsidiaries (or, after the Effective Time, the Surviving Corporation, Parent or any of their respective Subsidiaries) to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business (excluding, in respect of each of the forgoing, customary joint operating agreements);
(iii) is a joint venture, alliance or partnership agreement that either (A) officer is material to the operation of the Company and its Subsidiaries, taken as whole, or director (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100 million in the aggregate during the 12-month period following the date hereof;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $50 million individually;
(v) is a Derivative contract, other than any such Derivative that expires by its terms on or before December 31, 2010;
(vi) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale agreement or other similar agreement pursuant to which (A) the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date hereof to be in excess of $50 million or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries (or any other employee who interests therein) after the date of this Agreement with a fair market value or purchase price of more than $50 million;
(vii) is one an agreement providing for the sale by the Company or any of its Subsidiaries of Hydrocarbons which contains a material “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding, “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(viii) is an agreement pursuant to which the Company and its Subsidiaries have paid amounts associated with any Production Burden in excess of $100 million during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it and its Subsidiaries will make payments associated with any Production Burden in any of the twenty most highly compensated employees next three succeeding fiscal years that could, based on current projections, exceed $100 million per year;
(ix) is a transportation agreement involving the transportation of more than 100 MMcf (or the MMBtu equivalent) of Hydrocarbons per day (calculated on a yearly average basis);
(x) is a joint development agreement, exploration agreement, or acreage dedication agreement (excluding, in respect of each of the foregoing, customary joint operating agreements) that either (A) is material to the operation of the Company and its Subsidiaries) for the twelve-month periods ended November 30, 2009 and 2010; taken as whole, or (B) record would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100 million in the aggregate during the 12-month period following the date hereof; or
(xi) is a settlement or beneficial owner similar agreement with any Governmental Authority or order or consent of five percent a Governmental Authority to which the Company or more any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries, taken as a whole; (each such contract listed in Section 4.22 of the voting securities Company Disclosure Letter and any contract of Company; the Company or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of any such officer, director or beneficial owner; and
(xiv) any other Contract its Subsidiaries that is a material contract required to be filed by as an exhibit to the Company 10-K pursuant to Item 601(a)(10601(b)(10) of Regulation S-K of the SEC, a “Material Contract”).
(b) The Company has prior Except as, individually or in the aggregate, would not be material to the date of this Agreement delivered or Made Available to Parent complete and accurate copies of each Company Material Contract listed, or required to be listed, in Section 5.14 of the Company Disclosure Schedule (including all amendments, modifications, extensions and renewals thereto and waivers thereunder). All of the Company Material Contracts are valid and binding obligations of the Company and its Subsidiaries, taken as a whole, each Material Contract is valid and binding and, to the Knowledge knowledge of the Company are binding obligations of the other parties theretoCompany, and are in full force and effect (except those which are cancelledand, rescinded to the Company’s knowledge, enforceable against the other party or terminated after the date of this Agreement parties thereto in accordance with their termsits terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles), except where subject to scheduled expirations in the failure to be valid and binding and in full force and effect has not had and ordinary course. Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the CompanyEffect, and no written notice to terminate and no written notice of an intent to terminate, in whole or part, any Material Contract has been received by neither the Company or nor any of its Subsidiaries. Neither , nor to the Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries norhas received written notice that it has breached, to the Knowledge of the Company, violated or defaulted under any other party thereto is in default or breach under the terms of any Company Material Contract except for such instances of default or breach that would not be reasonably likely to result in a Material Adverse Effect on the CompanyContract.
Appears in 1 contract
Sources: Merger Agreement (Xto Energy Inc)