Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by: (i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act; (ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary; (iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole; (iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding; (v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time; (vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary; (vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party; (viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000; (ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and (x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000. (b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as As of the date of this Agreement, none Schedule 4.11(a) of Seller’s Disclosure Schedules lists each of the Company or any Company Subsidiary is a party to or bound by:following Contracts of the Companies and the Transferred Subsidiaries (collectively, “Material Contracts”):
(i) Any Contract relating to any Contract that is required to be filed by the Company pursuant to Item 15 Indebtedness for borrowed money in excess of Form 10-K under the Exchange Act$7,500,000;
(ii) Any written employment, severance, termination, employee-like consulting or retirement Contract for any Contract relating Employee providing for annual compensation in excess of $375,000 (excluding discretionary bonuses) or with respect to any creditthe employment of, loan severance, retention or facility arrangementpayment to, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company its directors and any Company Subsidiaryexecutive officers;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by Any Contract entered into within the Company or any Company Subsidiary with any Third Party, in each case that is material last three years relating to the acquisition or disposition of any business or assets (whether by merger, sale of the Company and the Company Subsidiaries taken as a wholestock, sale of assets or otherwise) contemplating an exchange of value in excess of $3,750,000;
(iv) all Contracts relating Any Contract that limits or purports to limit the purchase manner in which, the duration for which or sale the localities in which its business is or could be conducted or the types of any Shares business that it conducts or may conduct other securities than pursuant to engagement letters entered into in the ordinary course of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingbusiness;
(v) any Any material Contract that limits, pursuant to which (1) the Companies or purports the Transferred Subsidiaries grant a license to limit, Intellectual Property owned by the ability of Companies or their respective Subsidiaries to a third party or (2) the Company Companies or any Company Subsidiary to compete in any material line of business the Transferred Subsidiaries license Intellectual Property from a third party (other than licenses for commercial “off-the-shelf” or with any person or entity or in any geographic area or during any period of time“shrink-wrap” software);
(vi) any Any Contract prohibiting relating to the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance settlement of any guaranty by Action within the Company or past three years with any wholly owned Company SubsidiaryGovernmental Authority (regardless of amount);
(vii) any Any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected containing a covenant not to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partycompete;
(viii) Any Contract with any Contract providing for Affiliate of Seller (other than the acquisition from another person Companies or disposition to another person, directly the Transferred Subsidiaries) involving any amount or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) obligation in excess of US$5,000,000$1,000,000;
(ix) Any Contract (including any Contract that are license agreements material to the business so-called take-or-pay or keepwell agreements) under which (A) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the any Company or a Transferred Subsidiary or (B) any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company a Transferred Subsidiary has directly or Company Subsidiaries indirectly guaranteed indebtedness, liabilities or obligations of any person, (in each case other than license agreements endorsements for commercially available software on standard terms or non-exclusive licenses granted the purpose of collection in the ordinary course of business), in any such case which, individually, is in excess of $500,000;
(x) Any Contract under which any Company or Transferred Subsidiary has, directly or indirectly, made any advance, loan or extension of credit to any person, in any such case which, individually, is in excess of $3,750,000 other than any such Contract entered into in the ordinary course of business;
(xi) Any Contract providing for indemnification of any person with respect to material liabilities relating to any current or former business of any Company or Transferred Subsidiary;
(xii) Any Contract for any joint venture; and
(xxiii) Any Contract other than as set forth above to which any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or Transferred Subsidiary is a Company Subsidiary and in full force and effect, party or by which it or any of its assets or businesses is bound or subject that is material to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws its business or the use or operation of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractits assets.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Raymond James Financial Inc), Stock Purchase Agreement (Regions Financial Corp)
Material Contracts. (a) Except for Section 3.16 of the Pivotal Disclosure Letter lists (i1) this Agreement the EMC-Pivotal Customer Contracts and (2) each Contract of the following types, other than a Pivotal Plan or any Contract solely among Pivotal or any of its Subsidiaries, on the one hand, and VMware or any of its Subsidiaries, on the Contracts contemplated to be entered into hereunder by the Company)other hand, (ii) contracts, arrangements or understandings to which the Company Pivotal or any Company Subsidiary of its Subsidiaries is a party as or by which any of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports their respective properties or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary assets is a party to or bound bybound:
(i) any Contract that is would be required to be filed by the Company Pivotal as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange ActSecurities Act or disclosed by Pivotal on a Current Report on Form 8-K;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset that limits the ability of the Company Pivotal or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries in a material manner, to compete in any line of business or with any Person or in any geographic area, which business or geographic area is material to Pivotal and its Subsidiaries, taken as a whole, or that materially restricts the right of Pivotal and its Subsidiaries in a material manner to sell to or purchase from any Person or to hire any Person, or that grants the other than party or any Indebtedness between third Person “most favored nation” status or among any type of the Company and any Company Subsidiaryspecial discount rights;
(iii) any Contract with respect to the formation, creation, operation, management or control of a joint venture Contractventure, strategic cooperation or partnership arrangementspartnership, limited liability or other similar agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholearrangement;
(iv) all Contracts any Contract relating to the purchase or sale Indebtedness and having an outstanding principal amount in excess of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding$1,000,000;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for involving the acquisition from another person or disposition to another persondisposition, directly or indirectly (by merger, license merger or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration (in one or a series of transactions) under such Contract of $1,000,000 or more (other than acquisitions or series dispositions of related Contractsinventory in the ordinary course of business consistent with past practice);
(vi) any Contract that by its terms calls for aggregate payment (including royalties) by Pivotal and its Subsidiaries under such Contract of more than $5,000,000 over the remaining term of such Contract;
(vii) any Contract pursuant to which Pivotal or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of US$$5,000,000, other than indemnification arrangements arising pursuant to Contracts with customers relating to Pivotal Products in the ordinary course of business; Table of Contents
(viii) any Contract that is a license agreement, covenant not to ▇▇▇ agreement or co-existence agreement or similar agreement that is material to the business of Pivotal and its Subsidiaries, taken as a whole, to which Pivotal or any of its Subsidiaries is a party and (a) licenses in Intellectual Property owned by a third party, or (b) licenses out Intellectual Property owned by Pivotal or its Subsidiaries or agrees not to assert or enforce Intellectual Property owned by Pivotal or such Subsidiary, other than, in the case of (a), (1) non-exclusive licenses for software or a cloud service that is generally commercially available and not embedded in, integrated or bundled with a Pivotal Product, and (2) Open Source Licenses, and in the case of (b), (3) non-exclusive licenses granted to any Person in the ordinary course of business where the license is granted for the purpose of the Person’s provision of services to Pivotal or any of its Subsidiaries, including such Contracts with individual employees or independent contractors, and in the case of (a) and (b), (4) non-exclusive licenses relating to Pivotal Products with customers and potential customers of Pivotal or any of its Subsidiaries entered into in the ordinary course of business, (5) stand-alone confidentiality agreements entered into in the ordinary course of business and (6) Contracts with VMware, EMC Corp, Dell or any of their Affiliates;
(ix) any Contract that obligates Pivotal or any of its Subsidiaries to make any capital commitment, loan or expenditure in an amount in excess of $5,000,000;
(x) any Contract not entered into in the ordinary course of business between Pivotal or any of its Subsidiaries, on the one hand, and any Affiliate thereof other than any Subsidiary of Pivotal, Dell, EMC Corp, VMware or any of their respective Affiliates;
(xi) any Current Government Contract;
(xii) any Material Customer Contract with a Top Customer; or
(xiii) any Contract to which Pivotal or any of its Subsidiaries is a party and pursuant to which Intellectual Property owned by a third party is exclusively licensed (or similar exclusive rights are license agreements granted) to Pivotal or any of its Subsidiaries, excluding Intellectual Property that is not material to the business of the Company Pivotal and the Company its Subsidiaries, taken as a whole, pursuant to which the Company or any . Each contract of the Company Subsidiaries licenses type described in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries subsection (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
a)(1) and subsection (xa)(2) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, clauses (i) each through (xiii) is referred to herein as a “Material Contract.”
(i) Each Material Contract is valid and binding on Pivotal and any of its Subsidiaries to the Company or extent such Subsidiary is a Company Subsidiary party thereto, as applicable, and to the knowledge of Pivotal, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable and in full force and effect, subject to bankruptcyindividually or in the aggregate, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principleswould not have a Material Adverse Effect; (ii) as Pivotal and each of the date of this Agreementits Subsidiaries, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of Pivotal, each other party thereto, has performed all obligations required to be performed by it under each Material Contract, other than any obligations for which the Companyfailure to perform would not be material to Pivotal and its Subsidiaries, taken as a whole; and (iii) there is no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) Contract by Pivotal or any of its Subsidiaries or, to the Company has not received, as knowledge of the date of this AgreementPivotal, any other party thereto, and no event or condition has occurred that constitutes, or, after notice in writing from or lapse of time or both, would constitute, a default on the part of Pivotal or any person that of its Subsidiaries or, to the knowledge of Pivotal, any other party thereto under any such person intends to terminate any Material Contract, nor has Pivotal or any of its Subsidiaries received any notice of any such default, event or condition, except where any such default, event or condition, individually or in the aggregate, would not have a Material Adverse Effect. Pivotal has Made Available to VMware true and complete copies of all Material Contracts, including all amendments thereto.
Appears in 3 contracts
Sources: Merger Agreement (Dell Technologies Inc), Merger Agreement (Dell Technologies Inc), Merger Agreement (Vmware, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a4.10(a) of the Company Seller Disclosure Letter (such Contracts collectively, the “Material Contracts”)sets forth a true and correct list, as of the date of this AgreementEffective Date, none of the Company or any Company Subsidiary is a party following Business Contracts (other than Leases and such Contracts set forth in Sections 4.9(c), 4.9(d), 4.15(a) and 4.16(a) of the Seller Disclosure Letter), copies of which have been made available to or bound byPurchaser:
(i) Contracts for the purchase or sale of assets, products or services (other than Contracts for the purchase or sale of inventory (including any Contract that is required to be filed finished goods, raw materials, components or work-in-progress) or obsolete equipment in the ordinary course of business consistent with past practice), in each case requiring annual payments by the Company pursuant to Item 15 any party thereto in excess of Form 10-K under the Exchange Act$1,000,000;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 Contracts for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares business or line of business that have continuing indemnity or other securities material obligations of the Business;
(iii) Contracts which grant to any Person other than a Purchased Company the exclusive right to market, distribute or resell any Business product, or to exclusively represent a Purchased Company or an Asset Seller with respect to any such product, or act as exclusive agent for a Purchased Company Subsidiary that has or an Asset Seller in connection with the marketing, distribution or sale of any Business product;
(iv) Contracts for the lease of Equipment requiring annual payments by a fair market value Purchased Company or purchase price Asset Seller in excess of more than US$1,000,000 under which there are material rights or obligations outstanding$1,000,000;
(v) Contracts with any Contract that limitsof the Material Relationships;
(vi) Contracts granting an Encumbrance (other than a Permitted Encumbrance) on any Purchased Equity Interest or material Business Asset;
(vii) Contracts which limit or purport to limit a Purchased Company or an Asset Seller, or purports which following the Closing would limit or purport to limit, the ability of the Company limit Purchaser or any Company Subsidiary to compete of its Affiliates, in each case, from engaging in any material line of business or competing with any person or entity Person or in any geographic area or during any period of time;
(viviii) Contracts requiring any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Purchased Company or any of its wholly owned Company Subsidiaries, prohibits the pledging Asset Seller to purchase all or a specified portion of the capital stock requirements of the Company or any wholly owned Company Subsidiary or prohibits Business, other than Contracts that are immaterial in amount and nature to the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000Business;
(ix) Contracts pursuant to which any Purchased Company has incurred any material indebtedness for borrowed money or issued any guarantee of any Liability of any other Person;
(x) consulting or independent contractor Contracts requiring annual payments by a Purchased Company or Asset Seller in excess of $100,000;
(xi) sales commission agreements and similar Contracts providing for payments to any Person based on sales, purchases, or profits, other than direct payments for goods, under which a Purchased Company or Asset Seller made payments exceeding $500,000 in the aggregate during the 12-month period ending June 30, 2016;
(xii) joint venture, partnership or other Contracts involving a sharing of profits, losses, costs or Liabilities of the Business with any other Person;
(xiii) Contracts for capital expenditures, other than (A) capital expenditures reflected in the capital expenditures budget of the Business previously made available to Purchaser or (B) which involves or is reasonably likely to involve aggregate expenditures of not more than $2,000,000; and
(xiv) Contracts with any director, officer or employee (in each case, other than (A) employment agreements covered in Section 4.10(a)(x), (B) payments of compensation for employment to employees in the ordinary course of business and (C) participation in Employee Benefit Plans by employees).
(b) Each Contract that are license agreements material set forth in, or required to be set forth in, or if entered into prior to the business Effective Date, would be required to be set forth in, Section 4.10(a) of the Seller Disclosure Letter (each, a “Material Contract”) is a legal, valid and binding obligation of a Purchased Company or an Asset Seller and, to the Knowledge of Parent, each other party thereto, enforceable in accordance with its terms, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the enforcement of creditors’ rights generally and to general equitable principles. No Purchased Company or Asset Seller is in breach or default of, or has received any written notice of any breach, default or event that, with notice or lapse of time, or both, would constitute a default by a Purchased Company or Asset Seller under any Material Contract, except as would not reasonably be expected, individually or in the aggregate, to result in a material Liability of the Purchased Companies and the Company SubsidiariesAsset Sellers, taken as a whole, pursuant to which or otherwise materially interfere with the Company or any conduct of the Company Subsidiaries licenses Business, taken as a whole, in Intellectual Property substantially the manner currently conducted. To the Knowledge of Parent, no other party to a Material Contract is in breach or licenses out Intellectual Property owned by the Company or default of such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing Material Contract, except for any change of control such breaches or similar payments to a third party in excess of US$1,000,000.
(b) Except as defaults that would not reasonably be expected expected, individually or in the aggregate, to have result in a Company Material Adverse Effectmaterial Liability owed to the Purchased Companies and the Asset Sellers, taken as a whole, or otherwise materially interfere with the conduct of the Business, taken as a whole, in substantially the manner currently conducted.
(ic) Section 4.10(c) of the Seller Disclosure Letter sets forth a true and correct list, as of the Effective Date, of each Material Shared Contract that is material to the Business in any respect. Each Shared Contract set forth in, or required to be set forth in, or if entered into prior to the Effective Date, would be required to be set forth in, Section 4.10(c) of the Seller Disclosure Letter is, with respect to the Business, a legal, valid and binding on the obligation of a Purchased Company or a Company Subsidiary and an Asset Seller and, to the Knowledge of Parent, each other party thereto, enforceable in full force and effectaccordance with its terms, except to the extent that its enforceability may be subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium moratorium, receivership and similar Laws laws affecting the enforcement of general applicability relating to or affecting creditors’ rights, rights generally and to general equity equitable principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 3 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Material Contracts. (a) Except for contracts (i) this Agreement (including all amendments and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”modifications thereto) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(aDocuments, Schedule 3.18(a) of the Company Disclosure Letter (such Contracts collectivelySchedules, the “Material Contracts”), sets forth a complete and accurate list as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byAgreement of:
(i) any Contract contract that is required to be filed by as an exhibit to a report or filing under the Company pursuant to Item 15 of Form 10-K under Securities Act or the Exchange Act;
(ii) any Contract relating to any credit, loan contract that involves annual payments or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of consideration from the Company or any Company Subsidiary) of its subsidiaries of more than US$2,000,000 for each such Contract individually, other than $1,000,000 during any Indebtedness between or among any of twelve (12) month period and is not terminable by the Company and any Company Subsidiaryor its subsidiary on 90 (or fewer) days’ notice without penalty;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or contract that contains any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, covenant restricting the ability of the Company or any Company Subsidiary to of its 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 or entity or (z) operate in any geographic area area;
(iv) any contract granting to any person (other than the Company or during any period of timeits subsidiaries) “most favored nation” pricing provisions;
(v) any contract that provides for “exclusivity,” rights of first refusal, rights of first negotiation or any similar requirement in favor of any person (other than the Company or any of its subsidiaries);
(vi) any Contract prohibiting contract relating to any joint venture, partnership, strategic alliance, or other similar agreements to which the payment Company or any of dividends its subsidiaries is a party;
(vii) any loan agreement, credit agreement, note, debenture, bond, mortgage, guarantee, indenture or distributions in respect of the capital stock other contract (collectively, “debt obligations”) pursuant to which any indebtedness of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging subsidiaries in excess of the capital stock $1,000,000 is outstanding or may be incurred and all guarantees of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) of its subsidiaries of debt obligations of any Contract providing for any indemnificationother person, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment including the respective aggregate principal amounts outstanding as of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partydate of this Agreement;
(viii) any Contract providing for the acquisition from another person contract with or disposition with respect to another persona labor union, directly or indirectly (by merger, license or otherwise), of assets or capital stock guild or other equity interests of another person for aggregate consideration under such Contract employee representative (including any collective bargaining agreement or series of related Contracts) in excess of US$5,000,000works council agreement);
(ix) any Contract contract that are license agreements material requires a consent to or otherwise contains a provision relating to a change of control, or that would or could reasonably be expected to prevent, delay or impair the business consummation of the transactions contemplated herein, including the Merger;
(x) any contract requiring or otherwise relating to any future capital expenditures by the Company or 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 and or any of its subsidiaries; and
(xii) any contract relating to any acquisition (by merger, consolidation, acquisition of all or substantially all of the assets or otherwise) from any person or divestiture or disposition by the Company Subsidiariesor any of its subsidiaries to any person of material properties, taken assets, capital stock or other equity interests, in each case, involving payments in excess of $1,000,000; in each case for such contracts as a whole, pursuant to which the Company or any of its 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 Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000Material Contract”.
(b) Except as would not reasonably be expected Prior to have a the date of this Agreement, the Company has provided complete and accurate copies of all Company Material Adverse EffectContracts (including all amendments, (imodifications, supplements, exhibits, schedules, annexes or other documents modifying or supplementing the terms thereof) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) effect as of the date of this Agreement.
(c) Neither the Company nor any subsidiary of the Company is in material breach of or material default under the terms or conditions of any Company Material Contract and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material default on the part of the Company or any of its subsidiaries or, to the 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 violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under the terms or conditions of any such Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company and, to the knowledge of the Company, no fact 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 event exists that could give rise other similar Laws, now or hereafter in effect, relating to any claim of material default under any Material Contract; creditors’ rights generally and (ivii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company has not received, as discretion of the date of this Agreement, court before which any notice in writing from any person that such person intends to terminate any Material Contractproceeding 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) Except for For purposes of this Agreement, a “Material Contract” means any Contract (ior group of related Contracts) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary of its Subsidiaries is a party as or by which any of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports their respective properties or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byassets are bound:
(i) any Contract that is filed or required to be filed by the Company pursuant to Item 15 of Form 10-K as a “material contract” under the Exchange ActApplicable Securities Laws in Canada;
(ii) that (A) purports to limit or otherwise restrict in any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset material respect the ability of the Company or any Company Subsidiaryof its Subsidiaries to compete in any business or geographic or therapeutic area (or that, following the Arrangement, would by its terms apply such limits or other restrictions to the Parent or its Subsidiaries), (B) of more than US$2,000,000 for each such Contract individuallygrants any exclusive rights, other than (C) contains a “most favored nation” or similar provision, (D) includes any Indebtedness between “take or among any pay” or “requirements” obligation, (E) otherwise purports to prohibit or limit the right of the Company and or any of its Subsidiaries to develop, license, sell or distribute any products or services or (F) that purports to limit or otherwise restrict the ability of the Company Subsidiaryor its Subsidiaries to solicit for hire or to hire any person;
(iii) (A) containing any joint venture Contract, strategic cooperation or partnership arrangementsstandstill, or other similar agreement involving a sharing of profits, losses, costs or liabilities by pursuant to which the Company or any Company Subsidiary with any Third Party, in each case that is material of its Subsidiaries has agreed not to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase acquire assets or sale of any Shares or other securities of another person, (B) containing a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary of its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any person or assets that has have a fair market value or purchase price of more than US$1,000,000 under which there are $100,000 or (C) relating to the acquisition or disposition of any business or any material rights assets other than in the ordinary course of business (whether by merger, sale of shares or obligations outstandingassets or otherwise);
(iv) that would prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(v) any Contract that limits, or purports to limit, the ability of is between the Company or any Company Subsidiary to compete in of its Subsidiaries and any material line of business their respective directors, officers, affiliates or with any person beneficially owning five percent (5%) or entity or in any geographic area or during any period more of timethe outstanding Common Shares;
(vi) any Contract prohibiting that involves the payment or receipt by the Company or its Subsidiaries of dividends royalties or distributions other amounts in respect consideration for rights to practice any Intellectual Property of more than $100,000 in the capital stock aggregate;
(vii) (A) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $100,000 in any 12 month period, (B) for the receipt of services by a third party or for the purchase of raw materials, commodities, supplies, products, or other personal property, which involves payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any 12 month period or which would reasonably be expected to involve payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any future 12 month period during the term of such agreement except for payments to trade creditors in the ordinary course of business or (C) that provides for future payment obligations by the Company or any of its Subsidiaries of $100,000 or more related to clinical trials of Company Pharmaceutical Products;
(viii) under which any of the Company or any of its wholly owned Company SubsidiariesSubsidiaries is a lessee of, prohibits the pledging of the capital stock of the Company or holds or uses, any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnificationequipment, earn-outmachinery, installment vehicle or other contingent obligations or similar tangible personal property owned by a third person which requires future annual payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000$100,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries has entered into a partnership, joint venture, collaboration or other similar arrangement with any person (other than intercompany agreements);
(x) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $100,000;
(xi) pursuant to which the Company or any of its Subsidiaries licenses agrees not to make use of any material right in Intellectual Property or licenses out any Intellectual Property owned by the Company or such any of its Subsidiaries;
(xii) pursuant to which the Company Subsidiary or Company any of its Subsidiaries (has outstanding indebtedness, or provides a guarantee in a principal amount in excess of $100,000 other than license agreements for commercially available software on standard terms or non-exclusive licenses granted indebtedness to trade creditors incurred in the ordinary course of business); and;
(xxiii) containing a settlement with respect to a Proceeding (whether commenced or threatened in writing) of any nature;
(xiv) which requires future payments by the Company or any of its Subsidiaries in excess of $100,000 per annum containing “change of control” or similar provisions (whether or not such payments or benefits are contingent upon the occurrence of any other event);
(xv) under which the Company or its Subsidiaries have received, or are entitled to receive, payment from any person for use in the research or development of any Company Pharmaceutical Product;
(xvi) under which the Company is obligated to make future payments of over $100,000 for the research, development, or commercialization of any Company Pharmaceutical Product;
(xvii) pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to the research, development, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product;
(xviii) any Company Lease;
(xix) any employment, contractor or consulting Contract with any Company employee with annual compensation in excess of Cdn$200,000;
(xx) any Contract providing that provides for any change of control control, severance or termination pay or other compensation or benefits related to termination of employment or services to the Company or any of its Subsidiaries;
(xxi) any collective bargaining agreement or other similar payments Contract with a union, works council, trade union or other labor relations entity;
(xxii) any Contract with any current or former officer or director of the Company or any of its Subsidiaries; or
(xxiii) any Contract of which the Company has knowledge to which any employee, consultant or independent contractor of the Company or a third party Subsidiary is bound that in excess any manner purports to (A) restrict such employee’s, consultant’s or independent contractor’s freedom to engage in any line of US$1,000,000business or activity or to compete with any other Person, or (B) assign to any other Person such employee’s, consultant’s or independent contractor’s rights to any Intellectual Property that relate to the business of the Company and its Subsidiaries.
(b) Except as would not reasonably be expected Section 13(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to have which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound, and identifies each subsection of Section 13(a) that describes such Material Contract. The Company has delivered or made available to the Parent true, correct and complete copies of the Material Adverse EffectContracts, (i) each including all amendments, supplements and modifications thereto. Each of the Material Contract Contracts is valid and binding on the Company or a Company its applicable Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact each other party thereto and is in full force and effect. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any other party, is in breach of, or event exists that could give rise to default under, in any claim of material default under respect, any Material Contract; , and (iv) no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder in any material respect by the Company has not receivedor any of its Subsidiaries, as or, to the knowledge of the date of this AgreementCompany, any other party thereto. Neither the Company nor any of its Subsidiaries has received any written notice in writing from or other communication regarding any person that such person intends actual or possible violation or breach of or default under, or intention to terminate cancel or modify, any Material Contract.
(c) Section 13(c) of the Company Disclosure Letter contains a complete and accurate list of all Designated Contracts.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Arrangement Agreement (Ym Biosciences Inc)
Material Contracts. (a) Except for (iSchedule 4.13(a) this Agreement (and sets forth all of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement or by which its material assets or properties are bound (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) Contracts with any Contract that is required to be filed by Selling Member or Affiliate thereof or any current or former officer, member or Affiliate of the Company pursuant to Item 15 of Form 10-K under the Exchange ActCompany;
(ii) Contracts with any Contract relating to labor union or association representing any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset employee of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryCompany;
(iii) Contracts for the sale of any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business assets of the Company and other than in the Company Subsidiaries taken as a wholeOrdinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its assets;
(iv) all Contracts relating to the purchase for joint ventures, strategic alliances, partnerships, licensing arrangements, or sale sharing of any Shares profits or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingproprietary information;
(v) any Contract that limits, or purports to limit, the ability Contracts containing covenants of the Company or any Company Subsidiary not to compete in any material line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or entity covenants of any other Person not to compete with the Company in any line of business or in any geographic geographical area or during not to solicit or hire any period of timeperson with respect to employment;
(vi) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company of any Contract prohibiting the payment of dividends operating business or distributions in respect of material assets or the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryother Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Contract providing for Indebtedness or imposing a Lien on any indemnificationof the assets of the Company, earn-outincluding indentures, installment guarantees, loan or other contingent credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to conditional sale or from the Company or any Company Subsidiary, by or to any Third Partytitle retention agreements;
(viii) any Contract providing for purchase Contracts giving rise to Liabilities of the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) Company in excess of US$5,000,000$50,000;
(ix) any Contract all Contracts providing for payments by or to the Company in excess of $50,000 during the term thereof;
(x) all Contracts obligating the Company to provide or obtain products or services for a period of one year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs that are license agreements not cancelable without penalty or further payment on 30 or less days’ notice;
(xi) Contracts under which the Company has made advances or loans to any other Person;
(xii) Contracts providing for severance, retention, change in control or other similar payments;
(xiii) Contracts for the employment of any individual on a full-time, part- time or consulting or other basis;
(xiv) material management Contracts and Contracts with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment on 30 or less days’ notice;
(xv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the Company;
(xvi) Contracts (or group of related Contracts) which involve the expenditure of more than $50,000 in the aggregate or require performance by any party more than one year from the date hereof; and
(xvii) Contracts that are otherwise material to the business Company.
(b) Each of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of the Company which is a party thereto, and of the other parties thereto, and to the Knowledge of the executive officers of the Company, enforceable against each of the other parties in accordance with its terms, and upon consummation of the transactions contemplated by this Agreement, shall, except as otherwise stated in Schedule 4.13(b), continue without penalty or other adverse consequence in full force and effect immediately following the Closing Date. Except as set forth in Schedule 4.13(b), the Company is not in default under any Material Contract, nor, to the Knowledge of the Company or the Selling Members, is any other party to any Material Contract in breach of or default thereunder. Except as set forth in Schedule 4.13(b), to the Knowledge of the Company and the Company SubsidiariesSelling Members, taken as a whole, pursuant no party to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course Material Contracts has exercised any termination rights with respect thereto and no party has given notice of business); and
(x) any Contract providing for any change of control or similar payments significant dispute with respect to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the . The Company has delivered or made available to Purchaser true, correct and the Company Subsidiaries have not received any written claim complete copies of material default under any such Material Contract and, to the knowledge all of the CompanyMaterial Contracts, no fact together with all amendments, modifications or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractsupplements thereto.
Appears in 3 contracts
Sources: Purchase Agreement (Banctec Inc), Purchase Agreement (Banctec Inc), Purchase Agreement (Banctec Inc)
Material Contracts. (a) Except for (i) this Agreement (and Schedule 4.11 lists all of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date hereof:
(i) any Contract related to Indebtedness;
(ii) any joint venture, partnership or other arrangement involving a sharing of profits involving the Company, other than the LLC Agreement;
(iii) any Contract for the acquisition, sale or lease of properties or assets with a value in excess of $1 million other than sales of properties or inventories in the Ordinary Course of Business;
(iv) any Contract (A) restricting any right of the Company to compete with any Person or in any line of business or geographic area or during any period of time or (B) restricting any right of the Company to sell to or purchase from any Person, or that grants the other Person “most favored nation” status or exclusivity, other than the Legacy Affiliate Agreements;
(v) any Contract or group of related Contracts for capital expenditures in excess of $1 million for any single project or related series of projects;
(vi) any Contract with any customer or advertiser under which the Company received revenues in excess of $1 million during the last year;
(vii) any services Contract involving payments by the Company in excess of $1 million during the last year;
(viii) any Contract which evidences a “trade” or “barter” transaction in which the Company would receive goods or services from the customer or vendor in exchange for furnishing goods or services after the date of this Agreement;
(ix) any Contract providing for material indemnification rights or obligations to or from any Person (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business), other than the LLC Agreement;
(x) other than the Legacy Affiliate Agreement and the LLC Agreement, any Contract with any Seller or any Affiliate of any Seller or any director or officer of the Company;
(xi) all Legacy Affiliation Agreements (other than Legacy Affiliation Agreements between the “Contracts”Company and Purchaser or any of its Newspaper Affiliates) filed as exhibits and similar affiliation Contracts for the sale of the Company’s products and services with any Person that is not an Affiliate of Purchaser or any Seller;
(xii) any Contract with any Governmental Entity;
(xiii) any Contract with employees of or consultants to the Company SEC Reports that involves a commitment for annual consideration with a value in excess of $250,000 that cannot be terminated by the Company without liability upon prior notice of 30 days or less;
(iiixiv) as set forth any other Contract that involves annual commitments in Section 3.15(aexcess of $1 million that cannot be terminated by the Company without penalty upon prior notice of 30 days or less.
(b) As of the Company Disclosure Letter date hereof, each of the Leases and Contracts listed or required to be listed on Schedules 4.11, 4.12, 4.13(e)(1) or 4.13(e)(2) (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none ) constitutes a valid and binding obligation of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to except as may be filed limited by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any creditapplicable bankruptcy, loan or facility arrangementinsolvency, guarantee or Indebtedness (whether or not incurredreorganization, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations moratorium or similar payments that is still Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in effect and could reasonably be expected to result a proceeding in payment of more than US$250,000, to equity or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwiseat Law)), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject except where the failure to bankruptcybe in full force and effect would not, insolvencyindividually or in the aggregate, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating reasonably be expected to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, be material to the knowledge Business or the Company. To the Knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date hereof, no event has occurred and no condition or state of this Agreementfacts exists which, with the passage of time or the giving of notice or both, would constitute any notice default or breach by the Company or any other party thereto, except for such breaches, defaults, events or conditions that would not, individually or in writing from any person that such person intends the aggregate, reasonably be expected to terminate any be material to the Business or the Company. Complete and correct copies of each of the Material ContractContracts have heretofore been delivered to Purchaser.
(c) There are no outstanding powers of attorney executed on behalf of the Company.
(d) Schedule 4.11(d) sets forth (i) a list of each Seller’s 20 largest advertising customers with respect to the Business and (ii) all “major accounts” or “national accounts” of ▇▇▇▇.▇▇▇ as provided under the Legacy Affiliate Agreements, in each case as of the date hereof.
Appears in 3 contracts
Sources: Unit Purchase Agreement (Graham Holdings Co), Unit Purchase Agreement (A. H. Belo Corp), Unit Purchase Agreement (Gannett Co Inc /De/)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits relating to the Company SEC Reports or (iii) as set forth in Section Retained Assets, which will not be assumed by Acquirer, Schedule 3.15(a) of the Company Contributor Disclosure Letter Schedule lists the following Contracts as of the Execution Date (such Contracts Contracts, collectively, the “Material Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by between any Propane Group Entity or Inergy Sales, on the Company pursuant to Item 15 one hand, and NRGY or any Affiliate of Form 10-K under NRGY (other than the Exchange ActPropane Group Entities or Inergy Sales), on the other hand;
(ii) any Contract relating to that contains any credit, loan provision or facility arrangement, guarantee covenant which restricts any Propane Group Entity or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete Inergy Sales from engaging in any material lawful business activity or competing in any line of business or with any person or entity Person or in any geographic area or during any period of timetime after the Execution Date;
(iii) any Contract that relates to the 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 the Propane Group Entities or Inergy Sales;
(v) any Contract of the Propane Group Entities or Inergy Sales that includes the acquisition or sale of assets (other than Contracts for Inventory entered into in the ordinary course of business) (A) with a value in excess of $5,000,000 or (B) pursuant to which any Propane Group Entity or Inergy Sales has continuing “earn-out” or similar obligations (in either case, whether by merger, sale of stock, sale of assets or otherwise);
(vi) any Contract prohibiting the payment or commitment that involves a sharing of dividends profits by any Propane Group Entity or distributions in respect of the capital stock of the Company or Inergy Sales with any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryother Person;
(vii) any Contract providing for any indemnification, earn-out, installment that otherwise involves the annual payment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, sale by or to any Third Partyof 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) any Contract providing for the acquisition from another person all Contracts with independent contractors or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract consultants (or series of related Contractssimilar arrangements) to which any Propane Group Entity or Inergy Sales is a party involving annual payments in excess of US$5,000,000$100,000 and that cannot be cancelled by such Propane Group Entity or Inergy Sales without penalty or further payment and without more than thirty (30) days’ notice;
(ix) all Contracts with any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, Governmental Authority pursuant to which the Company a Propane Group Entity or any Inergy Sales has an obligation to sell propane in quantities that are in excess of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and250,000 gallons;
(x) any Contract providing for any change of control or similar involving annual payments to a third party in excess of US$1,000,000$100,000 that contains most favored nations provisions or grants any exclusive rights, rights of first refusal, rights of first negotiation, participation or similar rights to any Person with respect to any assets or business opportunity of any Propane Group Entity or Inergy Sales;
(xi) 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 Propane Group Entities or Inergy Sales of any material penalty or other further payment;
(xii) any agreement for the 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 payment by such Propane Group Entity or Inergy Sales of any material penalty or other further payment;
(xiii) any 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) from a Propane Group Entity or Inergy Sales to any third party and (B) to a Propane Group Entity or Inergy Sales (or a Contributor Party if utilized in or for the benefit of the 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 $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 (payment or otherwise) exceeding $500,000.
(b) Except as would not reasonably be expected set forth on Schedule 3.15(b) of the Contributor Disclosure Schedule, each Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract has been made available to have a Company Material Adverse EffectAcquirer, subject to the Clean Team Agreement, and (i) each Material Contract is a valid and binding on obligation of the Company Propane Group Entity or a Company Subsidiary Inergy Sales that is party thereto and (ii) is in full force and effecteffect and enforceable in accordance with its terms against such Propane Group Entity or Inergy Sales, subject to bankruptcyas applicable, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge Knowledge of the CompanyContributor Parties, no fact the other parties thereto, except in each case, as enforcement may be limited by Creditors’ Rights.
(c) None of Inergy Sales or event exists that could give rise the Propane Group Entities nor, to the Knowledge of the Contributor Parties, any other party to any claim Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract is in default or breach, in any material respect, thereunder and no event has occurred that (i) with the giving of notice or the passage of time or both would constitute a breach or default, in any material default respect, by Inergy Sales or such Propane Group Entity or, to the Knowledge of the Contributor Parties, any other party to any Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract, or (ii) would permit termination, modification or acceleration under any Material Contract; and (iv) Propane ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract by the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractcounterparty 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) Except for (i) this Agreement (and the except for Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of filed prior to the date of this Agreement, as of the date hereof, none of the Company or any Company Subsidiary its Subsidiaries is a party to or bound by:
(i) any Contract that is would be required to be filed by the Company pursuant to Item 15 4 of the Instructions to Exhibits of Form 1020-K F under the Exchange Act;
(ii) any Contract relating to any credit, loan involving the payment or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured receipt of amounts by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries, or relating to material Indebtedness (other than any Indebtedness solely between or among any of the Company and any Company Subsidiaryof its Subsidiaries);
(iii) any material joint venture Contractcontracts, strategic cooperation or cooperation, partnership arrangements, arrangements or other agreement agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary of its Subsidiaries with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholethird party;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, limits in any material respect the ability of the Company or any Company Subsidiary of its Subsidiaries or any of their respective employees to compete in any material line of business or with any person Person or entity or in any geographic area or during any period of timetime in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract prohibiting the payment of dividends between or distributions in respect of the capital stock of among the Company or any of its wholly owned Company Subsidiaries, prohibits on the pledging one hand, and any of the capital stock of their respective Affiliates (other than the Company or any wholly owned Company Subsidiary or prohibits of its Subsidiaries), on the issuance of any guaranty by other hand, that involves payments, taken as whole, that is material to the Company or any wholly owned Company Subsidiaryand its Subsidiaries;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from between the Company or any of its Subsidiaries and any director or executive officer of the Company Subsidiary, by or any Person beneficially owning five percent or more of the outstanding Shares required to any Third Partybe disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract providing for (other than Contracts granting Company Options) giving the acquisition from another person other party the right to terminate such Contract as a result of this Agreement or disposition the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to another person, directly the Company and its Subsidiaries or indirectly (by merger, license or otherwise), B) the value of assets or capital stock or other equity interests of another person for aggregate consideration the outstanding receivables due to the Company and its Subsidiaries under such Contract (or series of related Contracts) in excess of US$5,000,000;Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any Contract that other contracts and agreements, whether or not made in the ordinary course of business, which are license agreements material to the business of the Company and the Company its Subsidiaries, taken as a whole, pursuant or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. Each such Contract described in clauses (i) through (ix) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments SEC Reports is referred to herein as a third party in excess of US$1,000,000“Material Contract”.
(b) Except As of the date of this Agreement, except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding on obligation of the Company or a Company Subsidiary and in full force and effectits Subsidiaries party thereto and, subject to bankruptcythe Company’s Knowledge, insolvencythe other parties thereto, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as neither the Company nor any of the date of this Agreementits Subsidiaries nor, to the knowledge of the Company’s Knowledge, no any other party thereto is in material breach or violation of, or default under, any Material Contract; 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, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract and (iii) to the Company’s Knowledge, the Company and the Company its Subsidiaries have not received any written claim or notice of material default default, termination or cancellation under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)other Transaction Agreements, as of the date of this Agreementhereof, none of the Company T or any Company Subsidiary its Subsidiaries is a party to nor are any of Company T’s or its Subsidiaries’ properties or assets bound by:
(i) any Contract that is would be required to be filed or furnished by the Company T pursuant to Item 15 19 and paragraph 4 of the Instructions to Exhibits of Form 1020-K F under the Exchange Act;
(ii) any Contract relating to any creditgranting a right of first refusal, loan first offer or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryfirst negotiation;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material Contract relating to the business formation, creation, operation, management or control of the Company and the Company Subsidiaries taken as a wholepartnership, joint venture, limited liability company or similar arrangement;
(iv) all Contracts relating to any Contract for the acquisition, sale or lease (including leases in connection with financing transactions) of material properties or assets of Company T (by merger, purchase or sale of any Shares assets or other securities of the Company stock or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingotherwise);
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeGovernmental Entity;
(vi) any Contract prohibiting involving the payment or receipt of dividends amounts by Company T or distributions in respect of the capital stock of the Company its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarymore than US$4,000,000;
(vii) any non-competition Contract providing for any indemnification, earn-out, installment or other contingent obligations Contract that purports to limit, curtail or similar payments that is still restrict in effect and could reasonably be expected to result in payment any material respect the ability of more than US$250,000, to or from the Company T or any Company Subsidiaryof its Subsidiaries to compete in any geographic area, by industry or to any Third Partyline of business;
(viii) any Contract providing for the acquisition from another person that contains a put, call or disposition similar right pursuant to another personwhich Company T or any of its Subsidiaries could be required to purchase or sell, directly or indirectly (by mergeras applicable, license or otherwise), of assets or capital stock or other any equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000any Person;
(ix) any Contract that are license agreements material contains restrictions with respect to the business (A) payment of the dividends or any distribution with respect to equity interests of Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company T or any of the its Subsidiaries, (B) pledging of share capital of Company T or any of its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned (C) issuance of guaranty by the Company T or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course any of business)its Subsidiaries; andor
(x) any Contract providing material Company T IP Agreements other than agreements for any change of control or similar payments to a third party Off-the-Shelf Software and UGC Agreements (all such Contracts described in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, clauses (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rightsthrough (x), and to general equity principles; (ii) as of any Company T VIE Contracts, collectively, the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any “Company T Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractContracts”).
Appears in 3 contracts
Sources: Merger Agreement (Tudou Holdings LTD), Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) Except for (ix) this Agreement Contracts that do not constitute Spinco Assets or Spinco Liabilities, and (and the Contracts contemplated to be entered into hereunder by the Company), (iiy) contracts, arrangements or understandings to which the Company or any Company Subsidiary Contract that is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)an Additional Transfer Document, as of the date of this Agreementhereof, none of the Company or Pluto Entities (with respect to the Spinco Business) nor any Company Subsidiary is a party of the Spinco Entities are parties to or otherwise bound by:by or subject to (Contracts of the following types, together with the Spinco Licenses, the “Spinco Material Contracts”):
(i) other than any such Contract that solely between Spinco Entities, any partnership, joint venture, strategic alliance, license or research and development project Contract, in each case, which is required material to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange ActSpinco Business (taken as a whole);
(ii) Contracts containing (A) a covenant materially restricting the ability of any Pluto Entity (with respect to the Spinco Business) or any Spinco Entity to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers or (B) a provision granting the other party exclusivity or similar rights, in each case of clauses (A) and (B), that would, after giving effect to the Combination, materially impact the Spinco Business (taken as a whole);
(iii) other than any such Contract solely between Spinco Entities, any Contract restricting Spinco from (A) paying any dividends, (B) making any other distributions to its stockholders or (C) repurchasing or redeeming shares of Spinco Common Stock;
(iv) any acquisition or divestiture Contract or licensing agreement that contains continuing financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations other than royalty payments) that would reasonably be expected to result in the receipt or making by any Pluto Entity (with respect to the Spinco Business) or any Spinco Entity of future payments in excess of $100 million;
(v) any Contract relating to any credit, loan or facility arrangement, guarantee or outstanding Indebtedness of the Spinco Entities (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Partyasset), in each case that is material in a principal amount in excess of $100 million, other than (A) Contracts solely among the Spinco Entities or a guarantee by any Spinco Entity of Indebtedness of another Spinco Entity and (B) financial guarantees entered into in the ordinary course of business consistent with past practice not exceeding $100 million, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeextent not drawn upon);
(vi) any Contract prohibiting the payment of dividends or distributions in respect Spinco Leases set forth on Section 6.18(b) of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company SubsidiarySpinco Disclosure Schedule;
(vii) any Contract providing for that relates to any indemnificationswap, earn-outforward, installment futures, or other contingent obligations or similar payments that is still derivative transaction with a notional value as of the date of this Agreement in effect and could reasonably be expected to result in payment excess of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party$100 million;
(viii) any Contract providing for involving the acquisition from another person settlement of any claims, actions, suits or disposition to another personproceedings or threatened claims, directly actions, suits or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract proceedings (or series of related Contractsclaims, actions, suits or proceedings) pursuant to which any Pluto Entity (with respect to the Spinco Business) or Spinco Entity (A) is required to pay after the date hereof consideration in excess of US$5,000,000$50 million or (B) is subject to material monitoring or reporting obligations to any other Person outside the ordinary course of business;
(ix) any Contract with any Governmental Authority that are license agreements is material to the business of the Company and the Company Subsidiaries, Spinco Business (taken as a whole), pursuant to which the Company excluding any sales, supply, manufacturing or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license services agreements for commercially available software on standard terms or non-exclusive licenses granted entered into in the ordinary course of business)business and tolling agreements entered into in connection with investigations by any Governmental Authority; and
(x) any Contract providing for not otherwise described in any change other subsection of control or similar payments this Section 6.11(a) that would be required to be filed by Spinco as a third party “material contract” (as such term is defined in excess Item 601(b)(10) of US$1,000,000Regulation S-K of the SEC) if Spinco were subject to the reporting requirements of the Exchange Act as of the date hereof.
(b) Except as would not reasonably be expected Pluto has made available to have a Company Material Adverse EffectUtah true, (i) complete and correct copies of each Spinco Material Contract described in Section 6.11(a)(i) through Section 6.11(a)(x) in effect on the date hereof. Each Spinco Material Contract (except those which may be canceled, rescinded, terminated or not renewed after the date hereof in accordance with their terms) is valid and binding on the Company applicable Pluto Entity or a Company Subsidiary Spinco Entity and, to the knowledge of Pluto, the counterparty thereto, and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to the Remedies Exception. No Pluto Entity or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party Spinco Entity is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Spinco Material Contract andto which it is a party, except for such breaches or defaults as would not reasonably be expected to have, individually or in the aggregate, a Spinco Material Adverse Effect. To the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not receivedPluto, as of the date hereof, no other party to any Spinco Material Contract is in breach of this Agreementor default under the terms of any Spinco Material Contract where such breach or default has had or would reasonably be expected to have, any notice individually or in writing from any person that such person intends to terminate any the aggregate, a Spinco Material ContractAdverse Effect.
Appears in 3 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.), Business Combination Agreement
Material Contracts. (ai) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company)Agreement, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.01(o) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)sets forth a true and complete list, as of the date of this the Original Agreement, none of and the Company or any Company Subsidiary is a party has made available to or bound byParent true and complete copies of:
(iA) any Contract each contract, lease, license, note, bond or other agreement (each, a “Contract”) that is would be required to be filed by the Company as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange Securities Act;
(iiB) each employment, consulting, severance, termination and indemnification Contract between the Company or any Contract relating to any credit, loan of its Subsidiaries and director or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset officer of the Company or any Company Subsidiary) such Subsidiary or other employee earning cash compensation in excess of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary$100,000 per year;
(iiiC) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by each Contract to which the Company or any Company Subsidiary with any Third Party, in each case of its Subsidiaries is a party that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(ivI) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, materially restricts the ability of the Company or any Company Subsidiary of its Subsidiaries to compete in any material line of business or with any person or entity or in any geographic area line of business or during to offer, sell, license, supply or distribute any period service or product, or (II) grants exclusive rights to any person, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of timeits Subsidiaries, upon notice of 90 days or less;
(viD) each Contract to which the Company or any of its Subsidiaries is a party that may call for aggregate payments by the Company or any of its Subsidiaries of more than $500,000, except for any such Contract prohibiting that may be canceled, without material penalty or other liability to the payment Company or any of dividends its Subsidiaries, upon notice of 90 days or distributions in respect less;
(E) each Contract to which the Company or any of its Subsidiaries is a party that calls for aggregate payments to the capital stock Company or any of its Subsidiaries of more than $500,000, provided, that if a Contract does not specify an aggregate amount to be paid to the Company, then such Contract shall be disclosed pursuant to this subparagraph (E) if aggregate payments to the Company pursuant to such Contract over the last 12 months shall have exceeded $500,000; and
(F) each loan and credit agreement, letter of credit, note, debenture, bond, indenture and other similar Contract pursuant to which any indebtedness of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) each case in excess of US$5,000,000;
(ix) $100,000, is outstanding or may be incurred, other than any such Contract that are license agreements material to the business of between or among the Company and any of its Subsidiaries. Each Contract of the Company Subsidiaries, taken type described in clause (A) through (F) above is referred to herein as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000“Material Contract”.
(bii) Except as would not reasonably be expected to have a Company All Material Adverse EffectContracts are valid, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rightseffect in all material respects. The Company is not, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have has not received any written claim of notice or has any Knowledge that any other party is, in material default under any such Material Contract andContract, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company there has not receivedoccurred any event that, as with the lapse of time or the date giving of this Agreementnotice or both, any notice in writing from any person that would constitute such person intends to terminate any Material Contracta material default.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as Schedule 3.16 of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) Disclosure Schedules lists each of the Company Disclosure Letter following written Contracts (such Contracts collectively, the as described in this Section 3.16(a) being “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed all Contracts that, by their terms, provide for payment or receipt by the Company pursuant to Item 15 Seller in connection with the Business of Form 10-K under the Exchange Actmore than $50,000 per year, including any such Contracts with customers or clients;
(ii) any Contract relating all Contracts related to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset printing of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiarythird-party publications;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing all Contracts related to distribution of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholepublications;
(iv) all Contracts relating to the purchase or sale of with any Shares or other securities advertising customer set forth on Schedule 3.17 of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingDisclosure Schedules;
(v) any Contract all Contracts relating to or evidencing indebtedness of the Business or the Seller in connection with the Business, including grants of security interests, guarantees or notes;
(vi) all Contracts that limits, relate to the Business that limit or purports purport to limit, limit the ability of the Company or any Company Subsidiary a Person to compete in any material line of business or with any person or entity other Person or in any geographic area or during any period of time;
(vi) , or that restrict the right of a Person to sell to or purchase from any Contract prohibiting other Person or to hire any other Person, or that grant the payment of dividends or distributions in respect of the capital stock of the Company other party or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company other Person “most favored nation” status or any wholly owned Company Subsidiary or prohibits the issuance type of any guaranty by the Company or any wholly owned Company Subsidiaryspecial discount rights;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment all leases of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third PartyLeased Real Property;
(viii) all collective bargaining Contracts that pertain to any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly Business Employees (by merger, license or otherwise“CBAs”), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) all material joint venture, partnership or similar Contracts relating to the Business;
(x) all Contracts that relate to the Business (A) pursuant to which the Seller licenses (including by means of a covenant not to ▇▇▇, release, immunity or the like) any Business Intellectual Property to any third party (other than EULAs or any licenses of content for publication) or (B) pursuant to which Seller or its Affiliates or any third party has licensed (including by means of a covenant not to ▇▇▇, release, immunity or the like) any Intellectual Property to the Business (other than (1) EULAs or (2) any commercial off-the-shelf software licenses or any licenses of content for publication, for which, in each case, the acquisition costs or annual license fee payable during the twelve (12) month period following the date hereof is not expected to exceed $25,000); and
(xi) any other Contract or groups of related Contracts that is or are license agreements material to the business of the Company and the Company SubsidiariesBusiness, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each Material Contract (i) each Material Contract is valid and binding on the Company or a Company Subsidiary Seller and, to the Knowledge of the Seller, the counterparties thereto, and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as shall continue in full force and effect upon consummation of the date Transactions, except to the extent that any consents set forth in Schedule 3.3(a) of this Agreementthe Disclosure Schedules are not obtained. Neither the Seller nor, to the knowledge of the CompanySeller’s Knowledge, no any other party is in material breach or violation of, or default under, any Material Contract; (iii) Contract to which it is a party, except for such breaches or defaults that would not, individually or in the Company aggregate, reasonably be expected to have a Material Adverse Effect, and to the Company Subsidiaries have not received any written claim Knowledge of material default under the Seller, no event has occurred that, with notice or lapse of time or both, would constitute a breach or default, except for any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New Media Investment Group Inc.), Asset Purchase Agreement (A. H. Belo Corp)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(aon Schedule 3.12(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)and except as would constitute an Excluded Asset or Excluded Liability, as of the date hereof, neither Seller nor any Subsidiary of this Agreement, none of the Company or any Company Subsidiary either Seller is a party to to, nor is either Seller, any Subsidiary of a Seller or any of their respective assets bound by:, any Contract (each, a "Material Contract"):
(i) relating to (A) the employment (as an employee or consultant) or termination of employment of any Contract that Person by each Seller or any Subsidiary of either Seller which may not be terminated without penalty or other obligation (other than any severance payments required by law) by such Seller or, as the case may be, such Subsidiary within twelve (12) months from the date hereof, or (B) the payment to any Person by each Seller or any Subsidiary of either Seller of any bonus award which is required to be filed by the Company pursuant to Item 15 contingent on a sale of Form 10-K under the Exchange Actsuch Seller, any Subsidiary of such Seller or any of their respective assets;
(ii) any Contract relating which contains material restrictions with respect to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset payment of the Company dividends or any Company Subsidiary) other distribution in respect of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryits capital stock;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing relating to Indebtedness of profits, losses, costs or liabilities by the Company each Seller or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholeits Subsidiaries;
(iv) all Contracts relating to materially limiting the purchase or sale ability of any Shares or other securities of the Company either Seller or any Company Subsidiary that has of a fair market value Seller to manufacture, sell or purchase price distribute any product, to engage in any line of more than US$1,000,000 under which there are material rights business or obligations outstandingto compete with any Person;
(v) with any Contract that limits, or purports to limit, the ability of the Company labor union or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeemployee organization;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company pursuant to which either Seller or any Subsidiary of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company a Seller is entitled or obligated to acquire any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) with a value in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as $250,000 from a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (third party other than license agreements for commercially available software on standard terms or non-exclusive licenses granted the purchase of inventory in the ordinary course of business;
(vii) in the form of a performance, payment, and other bonds issued by a Seller that are guaranteed by any Affiliate of such Seller (the "Bonds"); andor
(xviii) pursuant to which either Seller or any its Subsidiary of a Seller is obligated to provide goods or services to another Person with a total Contract providing for any change of control or similar payments to a third party value in excess of US$1,000,000$2,000,000.
(b) Except as set forth in Schedule 3.12(b) and except as otherwise would not reasonably be expected to have a Company Material Adverse Effect, Effect on the Business:
(i) there is no default under any Material Contract either by a Seller or any Subsidiary of a Seller or, to the Knowledge of the Sellers, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by a Seller or any Subsidiary of a Seller or, to the Knowledge of the Sellers, any other party;
(ii) no party to any Material Contract has given written notice to a Seller or any Subsidiary of a Seller of or made a claim in writing against a Seller or any Subsidiary or a Seller with respect to any breach or default thereunder;
(iii) to the Knowledge of the Sellers, no party to any Material Contract intends to cancel, withdraw, modify or amend any such Material Contract;
(iv) with respect to each Material Contract is valid or Bid, (A) each Seller or its Subsidiaries has complied in all material respects with all material terms and binding on the Company conditions of such Material Contract or a Company Subsidiary Bid, including all clauses, provisions and requirements incorporated expressly, by reference or by operation of law therein; (B) each Seller or its Subsidiaries has complied in full force all material respects with all requirements of any statute, rule, regulation or order pertaining to such Material Contract or Bid; (C) all representations and effectcertifications executed, subject acknowledged or set forth in or pertaining to bankruptcysuch Material Contract or Bid were current, insolvencyaccurate and complete in all material respects as of their effective date, fraudulent transferand each Seller or its Subsidiaries has complied in all material respects with all such representations and certifications, reorganizationincluding, moratorium and similar Laws of general applicability without limitation, those required by or relating to or affecting creditors’ rightsthe Foreign Corrupt Practices Act, the Cost Accounting Standards, and the regulations and rules relating to general equity principlesthe submission of progress payment requests; (iiD) no Governmental Authority nor any prime contractor, subcontractor or other Person has notified either Seller or their Subsidiaries in writing that either Seller or its Subsidiaries has breached or violated any statute, rule, regulation, certification, representation, clause, provision or requirement; (E) no termination for convenience, termination for default, cure notice or show cause notice has been issued (other than to the extent satisfied, cured or withdrawn); (F) no cost incurred by either Seller or its Subsidiaries has been disallowed in respect of any such Material Contract (in each case, other than costs not exceeding one percent (1%) of the value of the respective Material Contract); and (G) no money due to either Seller or its Subsidiaries has been withheld, reduced or set-off in respect of any such Material Contract (in each case, other than monies not exceeding one percent (1%) of the value of the respective Material Contract);
(v) there exist (A) no financing arrangements with respect to the performance of any Client Contract; (B) to the Knowledge of the Sellers, no material outstanding claims or requests for equitable or financial adjustments against the Sellers or their Subsidiaries, either by any party to a Material Contract, any Governmental Authority or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Material Contract or Bid; (C) to the Knowledge of the Sellers, no facts that are known by the Sellers upon which such a claim may be validly based in the future; and (D) to the Knowledge of the Sellers, no material disputes between either Seller or its Subsidiaries and any party to a Material Contract, any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Client Contract; and
(vi) the revenues and profits associated with each of the Client Contracts have been recorded in accordance with GAAP, and there exists no uncompleted Client Contract as to which the Company's estimated cost at completion (including material and labor costs, other direct costs, overheads, and engineering costs whether incurred or yet to be incurred) as of the date of this Agreement, Balance Sheet Date exceeds the aggregate contract revenue recorded or to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default be recorded under any such Material Client Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractthrough completion.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tetra Tech Inc), Asset Purchase Agreement (Foster Wheeler LTD)
Material Contracts. (a) Except for (i) this Agreement (and Schedule 3.14 sets forth all of the Contracts contemplated to be entered into hereunder by the Company), (ii) following contracts, arrangements or understandings agreements, commitments ("Contracts") to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement or by which it is bound (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “"Material Contracts”), as of the date of this Agreement, none "): (i) Contracts with any current officer or director of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
its Subsidiaries; (ii) Contracts with any Contract relating to labor union or association representing any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset employee of the Company or any Company Subsidiaryof its Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of more than US$2,000,000 its requirements or output from or to another party; (iv) Contracts for each such Contract individually, other than any Indebtedness between or among the sale of any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities assets of the Company or any Company Subsidiary that has a fair market value of its Subsidiaries other than in the ordinary course of business or for the grant to any person of any preferential rights to purchase price any of more than US$1,000,000 under which there are material rights or obligations outstanding;
its assets; (v) any Contract that limits, or purports to limit, the ability joint venture agreements; (vi) material Contracts containing covenants of the Company or any Company Subsidiary of its Subsidiaries not to compete in any material line of business or with any person or entity or in any geographic geographical area or during covenants of any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of other person not to compete with the Company or any of its wholly owned Company Subsidiaries, prohibits Subsidiaries in any line of business or in any geographical area; (vii) Contracts relating to the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty acquisition by the Company or any wholly owned Company Subsidiary;
(vii) of its Subsidiaries of any Contract providing for operating business or the capital stock of any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
person; (viii) any Contract providing for Contracts relating to the acquisition from another person borrowing of money; or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material other Contracts, other than Real Property Leases, which involve the expenditure of more than $50,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof. There have been made available to the business Purchaser, its affiliates and their representatives true and complete copies of all of the Company and the Company SubsidiariesMaterial Contracts. Except as set forth on Schedule 3.14, taken as a whole, pursuant to which the Company or any all of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (Material Contracts and other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and are in full force and effecteffect and are the legal, valid and binding obligation of the Company and/or its Subsidiaries, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or laws affecting creditors’ rights' rights and remedies generally and subject, and as to enforceability, to general principles of equity principles; (ii) regardless of whether enforcement is sought in a proceeding at law or in equity). Except as of set forth on Schedule 3.14, neither the date of this AgreementCompany nor any Subsidiary is in default in any material respect under any Material Contracts, nor, to the knowledge of the Company, no is any other party is in material breach or violation of, or default under, to any Material Contract; (iii) the Company and the Company Subsidiaries have not received Contract in default thereunder in any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractrespect.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Thomas Equipment, Inc.), Amalgamation Agreement (Maxim Mortgage Corp/)
Material Contracts. (a) Except for (i) this Agreement (The Earlychildhood Disclosure Schedule sets forth a complete and the Contracts contemplated accurate list, and Earlychildhood has made available to be entered into hereunder by the Company)SmarterKids, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound bytrue and complete copies of:
(i) each contract that provides for annual payments to or by Earlychildhood or any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actits Subsidiaries in excess of $150,000;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset each contract of the Company Earlychildhood or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any its Subsidiaries that was not entered into in the ordinary course of the Company and any Company Subsidiarybusiness;
(iii) any joint venture Contractcontract under which Earlychildhood or any of its Subsidiaries has or may, strategic cooperation except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or partnership arrangementscontingently or otherwise liable for (x) the performance under any contract of any other person, firm or other agreement involving a sharing corporation or (y) the whole or any part of profits, losses, costs the indebtedness or liabilities by the Company of any other person, firm or any Company Subsidiary with any Third Partycorporation, in each case that is material to all cases, individually in excess of $1,000,000 and in the business aggregate in excess of the Company and the Company Subsidiaries taken as a whole$5,000,000;
(iv) all Contracts relating to the purchase employment agreements, consulting agreements, contracts or sale commitments with any employee or member of any Shares or Earlychildhood's Management Committee, other securities of the Company than those which are terminable by Earlychildhood or any Company Subsidiary that has a fair market value or purchase price of its Subsidiaries on not more than US$1,000,000 under thirty days notice without liability or financial obligation, and within each such category of agreements, contracts or commitments, which there are material rights or obligations outstandingindividually in excess of $150,000;
(v) any Contract that limitsagreements or plans, including, without limitation, any stock option, stock or equity appreciation right or stock or equity purchase plans or agreements, any of the benefits of which will be increased, or purports to limitthe vesting of benefits of which will be accelerated, by the ability occurrence of any of the Company transactions contemplated by this Agreement or the value of any Company Subsidiary to compete in of the benefits of which will be calculated on the basis of any material line of business or with any person or entity or in any geographic area or during any period of timethe transactions contemplated by this Agreement;
(vi) any Contract prohibiting the payment of dividends contract with any Member, managing member or distributions in respect member of the capital stock Management Committee of Earlychildhood, other than in such person's capacity as a Member, managing member or member of the Company Management Committee, or any contract with any entity in which, to the knowledge of its wholly owned Company SubsidiariesEarlychildhood, prohibits the pledging any Member, managing member or member of the capital stock of the Company Management Committee or any wholly owned Company Subsidiary or prohibits the issuance family member of any guaranty by the Company or any wholly owned Company Subsidiarysuch person has a material economic interest;
(vii) any Contract providing for contract that limits or restricts in any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company material respect where Earlychildhood or any Company Subsidiary, by of its Subsidiaries may conduct its or to their business or the type or line of business that Earlychildhood or any Third Partyof its Subsidiaries may engage in;
(viii) any Contract providing for powers of attorney outstanding (other than those issued in the acquisition from another person or disposition ordinary course of business with respect to another person, directly or indirectly (by merger, license or otherwiseTax matters), or material obligations or liabilities (absolute or contingent) as guarantor, surety, cosigner, endorser, co-maker, indemnitor, or otherwise respecting the obligations or liabilities of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;any person.
(ix) any Contract that are license agreements material contract containing any agreement with respect to the business any change of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)control; and
(x) each material amendment, supplement, and modification (whether oral or written) in respect of any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000the foregoing.
(b) Except as would not Neither Earlychildhood nor any of its Subsidiaries have breached, or received in writing any claim or notice that it has breached, any of the terms or conditions of any material agreement, contract or commitment set forth or required to be set forth in Section 3.12 of the Earlychildhood Disclosure Schedule ("Earlychildhood Material Contracts") in such a manner as, individually or in the aggregate, is reasonably be expected likely to have a Company an Earlychildhood Material Adverse Effect. Except as set forth in the Earlychildhood Disclosure Schedule, (i) each Earlychildhood Material Contract that has not expired by its terms is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject except for those contracts, the ineffectiveness of which would not reasonably be likely to bankruptcyhave an Earlychildhood Material Adverse Effect and, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as if all of the date of this Agreementconsents, approvals, authorizations, filings, notifications and other actions listed with respect to such contract in the Earlychildhood Disclosure Schedule are obtained, taken or made, as applicable, such contract will continue, after the Effective Time, to be in full force and effect on identical terms.
(c) To the knowledge of Earlychildhood or its Subsidiaries, none of the Company, no other party is in material breach or violation ofparties to any Earlychildhood Material Contract have terminated, or default undernotified Earlychildhood or any of its Subsidiaries in writing of its intent to materially reduce or terminate its business relationship with Earlychildhood or any of its Subsidiaries in the future.
(d) Neither of Earlychildhood nor any of its Subsidiaries have received written notice from any customer, or group of customers, that are under common ownership or control, and that accounted for a material percentage of the aggregate products and services furnished by Earlychildhood or any Material Contract; of its Subsidiaries since January 1, 1999 that such customer or group of customers has stopped or intends to stop purchasing Earlychildhood's or any of its Subsidiaries' products or services, nor has Earlychildhood or any of its Subsidiaries lost any supplier, or group of suppliers that are under common ownership or control, that accounted for a material percentage of the aggregate supplies purchased by Earlychildhood or any of its Subsidiaries since January 1, 1999.
(iiie) As of the Company Effective Time, Earlychildhood will have terminated the Executive Management Agreement, dated as of May 5, 1999 by and between Earlychildhood and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Sons, L.L.C., a Delaware limited liability company (the "Executive Management Agreement"), and, from and after the Effective Time, there will be no further obligations or liabilities, including payment obligations, outstanding or due thereunder. The fees payable to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Sons, L.L.C. between the date hereof and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, Effective Time pursuant to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has Executive Management Agreement shall not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractexceed $25,000 per month.
Appears in 2 contracts
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc), Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as disclosed in Section 4.18 of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company PDN Disclosure Letter (such Contracts collectivelySchedule, the “Material Contracts”), as of the date of and except for this Agreement, none neither PDN nor any of the Company its Subsidiaries is bound by any contract, arrangement, commitment or any Company Subsidiary is a party to or bound byunderstanding:
(i) that constitutes a partnership, joint venture, technology sharing or similar agreement between PDN or any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actits Subsidiaries and any other person;
(ii) with respect to the service of any Contract relating to directors, officers, employees, or independent contractors or consultants that are natural persons, involving the payment of $100,000 or more in any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually12 month period, other than any Indebtedness between those that are terminable by PDN or among any of the Company and any Company Subsidiary;its Subsidiaries on no more than 30 days’ notice without penalty;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing that limits the ability of profits, losses, costs or liabilities by the Company PDN or any Company Subsidiary of its Subsidiaries to compete or enter into in any line of business, in any geographic area or with any Third Partyperson, in each case that is case, which limitation or requirement would reasonably be expected to be material to the business of the Company PDN and the Company its Subsidiaries taken as a whole;
(iv) all Contracts with or to a labor union, works council or guild (including any collective bargaining agreement or similar agreement);
(v) relating to the use or right to use Intellectual Property, including any license or royalty agreements, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vi) that provides for indemnification by PDN to any person, other than an agreement entered into in the ordinary course of business and that is not material to PDN;
(vii) between PDN or any of its Subsidiaries and any current or former director or officer of PDN or any of its Subsidiaries, or any affiliate of any such person (other than an PDN Benefit Plan);
(viii) with respect to (A) Indebtedness, (B) any capital lease obligations to any person other than PDN or any of its Subsidiaries, (C) any obligations to any person other than PDN or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than PDN or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (E) any obligations to pay to any person other than PDN or any of its Subsidiaries the deferred purchase price of property or services, (F) indebtedness secured by any Lien on any property owned by PDN or any of its Subsidiaries even though the obligor has not assumed or otherwise become liable for the payment thereof, or (G) any guaranty of any such obligations described in clauses (A) through (F) of any person other than PDN or any of its Subsidiaries, in each case, having an outstanding amount in excess of $100,000 individually or $250,000 in the aggregate;
(ix) that is material to PDN or that contains any so called “most favored nation” provision or similar provisions requiring PDN to offer to a person any terms or conditions that are at least as favorable as those offered to one or more other persons;
(x) pursuant to which any agent, sales representative, distributor or other third party markets or sells any PDN Product;
(xi) pursuant to which PDN or any Subsidiary is a party granting rights of first refusal, rights of first offer or similar rights to acquire any business or assets of the PDN or any Subsidiary;
(xii) relating to the purchase or sale of any Shares or other securities assets outside the ordinary course of the Company or any Company Subsidiary that has a fair market value or purchase price business of more than US$1,000,000 under which there are material rights or obligations outstandingPDN;
(vxiii) relating to the issuance of any Contract that limits, or purports to limit, the ability securities of the Company PDN or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeSubsidiary;
(vixiv) pursuant to which any Contract prohibiting the payment material asset of dividends or distributions in respect of the capital stock of the Company PDN or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company SubsidiarySubsidiaries is leased;
(viixv) relates to the purchase of (A) any Contract providing 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 related agreement, involves the expenditure by the PDN 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 which PDN or any indemnification, earn-out, installment or other contingent obligations or similar payments that Subsidiary is still in effect a party and could reasonably be expected to result in payment having a remaining term of more than US$250,000, one (1) year after the date hereof or involving a remaining amount payable thereunder (either to or from PDN) as of the Company or any Company Subsidiarydate hereof, by or to any Third Partyof at least $100,000;
(viiixviii) that involves the payment of $250,000 or more in any Contract providing for 12-month period after the acquisition from another person date hereof; or
(xix) that would prevent, delay or disposition to another personimpede the consummation, directly or indirectly (by merger, license or otherwise)otherwise reduce the contemplated benefits, of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses transactions contemplated by this Agreement. PDN has previously made available to PDN or its representatives complete and accurate copies of each Contract of the type described in Intellectual Property or licenses out Intellectual Property owned by this Section 4.18(a) (collectively referred to herein as “PDN Material Contracts”).
(b) All of the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted PDN Material Contracts were entered into at arms’ length in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is business and are valid and binding on the Company or a Company Subsidiary and in full force and effect, subject except to bankruptcythe extent they have previously expired in accordance with their terms. Neither PDN nor any of its Subsidiaries has given or received a notice of cancellation or termination under any PDN Material Contract, insolvencyor has, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating or is alleged to or affecting creditors’ rightshave, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of PDN, none of the Companyother 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 PDN Material Contract.
(c) Neither PDN nor any Subsidiary of PDN is in breach of or default under the terms of any PDN Material Contract, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. To the knowledge of PDN, no other party to any PDN Material Contract is in material breach of or default under the terms of any PDN Material Contract except for any such breach or violation ofdefault that has not had and would not reasonably be expected to have, individually or default underin the aggregate, any a PDN Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Adverse Effect. Each PDN Material Contract is a valid and binding obligation of PDN or the Subsidiary of PDN which is party thereto and, to the knowledge of PDN, 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 Company, no fact or event exists that could give rise discretion of the court before which any proceeding therefor may be brought.
(d) Neither PDN nor any Subsidiary of PDN is subject to any claim continuing obligations or restrictions under the Alliance Agreement between Monster Worldwide Inc. and PDN or the Diversity Recruitment Partnership Agreement, dated as of material default November 6, 2012, between PDN and LinkedIn Corporation (including under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that amendment to either such person intends to terminate any Material Contractagreement).
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (a) Except for (iSection 3.22(a) this Agreement of the Company Disclosure Schedule sets forth a true and complete list of each Contract (and the Contracts contemplated to be entered into hereunder by the Companyany amendments, supplements and modifications thereto), (ii) contractsother than any Company Benefit Plan, arrangements or understandings to which the Company or any of the Company Subsidiary Subsidiaries is a party as of the date of this Agreement (Agreement, or by which the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) Company, any of the Company Disclosure Letter Subsidiaries or any of their respective properties or assets is bound as of the date of this Agreement (such all Contracts collectivelydescribed in clauses (i) through (x) of this Section 3.22(a), the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound bywhich:
(i) any Contract that is required to be filed a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K promulgated by the Company pursuant to Item 15 of Form 10-K under the Exchange ActSEC;
(ii) any Contract relating is required to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset be disclosed pursuant to Item 404 of Regulation S-K of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of Exchange Act and has not been so disclosed prior to the Company and any Company Subsidiarydate hereof;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements extent material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant relates to the management of any Company Property or portion thereof which is not terminable on ninety (90) days’ notice or less without liability for any penalty or other payment;
(iv) contains covenants of the Company or any of the Company Subsidiaries licenses not to compete or engage in Intellectual any line of business or compete with any Person in any geographic area, in each case, in a manner that is material to the Company and the Company Subsidiaries, taken as a whole;
(v) (A) provides for a partnership or joint venture or a material strategic alliance, collaboration, co-promotion, co-marketing or similar arrangement (including any tenancy-in-common arrangement or understanding) between the Company or any Company Subsidiary and a third party, or (B) to the extent material to the business of the Company and the Company Subsidiaries, taken as a whole, involves a sharing of the Company’s, the Company Subsidiaries’ or any other Person’s revenues, profits, losses, costs or liabilities with any other Person (other than the Company or any of the Company Subsidiaries);
(vi) provides for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease (by merger, by purchase or sale of assets or stock, by lease or otherwise), or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of, (A) any real property (including any Company Property or licenses out Intellectual Property owned any portion thereof) or (B) any other material asset of the Company or any Company Subsidiary with a fair market value or purchase price greater than $20,000,000;
(vii) contains continuing material obligations of the Company or a Company Subsidiary involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of real property, assets, capital stock or other equity interests, including any “earn-out” provisions or other contingent payment obligations that would reasonably be expected to result in any material payment obligation by the Company or such Company Subsidiary or any of the Company Subsidiaries after the date of this Agreement;
(other than license agreements viii) relates to any Indebtedness for commercially available software on standard terms borrowed money in excess of $1,000,000 (provided, that Section 3.22(a) of the Company Disclosure Schedule sets forth only (A) the principal Contract relating to any such Indebtedness or non-exclusive licenses granted (B) in the ordinary course case of businessa mortgage, the applicable Company Property encumbered by such mortgage, the outstanding principal amount of such mortgage as of November 4, 2021, and whether such mortgage is subject to any “lock-out” or similar provision as of September 28, 2021);
(ix) provides for any swap, forward, futures, warrant, option or other derivative or hedging transaction, including any interest rate cap, interest rate collar, interest rate swap or other similar Contract or agreement; andor
(x) provides for (A) annual aggregate payments or other consideration to the Company or any Contract providing for of the Company Subsidiaries of more than $1,000,000 or (B) annual aggregate payments or other consideration by the Company or any change of control or similar payments to a third party in excess the Company Subsidiaries of US$1,000,000more than $2,500,000.
(b) Except The Company has made available to Parent a true and complete copy of each Material Contract. Each Material Contract is a valid and binding obligation of the Company or the Company Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto, in full force and effect and enforceable in accordance with its terms, except (i) as such enforceability is subject to the Bankruptcy and Equity Exception, except as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and (ii) for any such Material Contract that is in effect on the date hereof but will expire in accordance with its terms prior to the Closing Date. Neither the Company nor any of the Company Subsidiaries nor, to the knowledge of the Company, any other party is in breach of or in default under any Material Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would result in a material violation or material breach of, or give the Company, a Company Subsidiary or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity of performance of, or to cancel or terminate or modify, any Material Contract, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Since January 1, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of 2021 through the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) neither the Company and nor any of the Company Subsidiaries have not has received written notice of any written claim actual or alleged material breach of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) 4.15 of the Company Disclosure Letter (such Schedule sets forth all of the following Contracts collectivelyto which the Company, the “Material Contracts”), as of the date of this Agreement, none of the Company Purchased Companies or any Company Subsidiary of their Subsidiaries is a party to or by which it is bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (collectively, the "Material Contracts"): (i) Contracts with any current officer or director of the Company, the Purchased Companies or any of their Subsidiaries; (ii) Contracts with any labor union or association representing any employee of the Company, the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets of the Company, the Purchased Companies or any of their Subsidiaries other than in the Ordinary Course of Business or for the grant to any person of any preferential rights or obligations outstanding;
to purchase any of its assets; (v) any Contract that limits, or purports to limitjoint venture agreements; (vi) Contracts containing covenants of the Company, the ability of the Company Purchased Companies or any Company Subsidiary of their Subsidiaries not to compete in any material line of business or with any person in any geographical area or entity covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographic area geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or during any period of time;
(vi) their Subsidiaries of any Contract prohibiting the payment of dividends operating business or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
person; (viii) any Contract providing for Contracts relating to the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), borrowing of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
money; (ix) any Contract that distributor, supplier (as such term is used in the Company SEC Documents), advertising, agency or manufacturer's representative Contract; (x) agreement of guarantee, support, assumption or endorsement of, or any similar commitment with respect to the Liability or Indebtedness of any other Person; (xi) trust indenture, mortgage, promissory note, loan agreement or (xii) other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are license agreements otherwise material to the business Company, the Purchased Companies and any of the Company and the Company Subsidiaries, their Subsidiaries taken as a whole. The Company, pursuant the Purchased Companies and their Subsidiaries have provided or made available to which the Company or any Purchaser true and complete copies of all of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by written Material Contracts and written summaries of the Company or such Company Subsidiary or Company Subsidiaries (material terms of all of the oral Material Contracts. All of the Material Contracts and other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and are in full force and effecteffect and are the legal, valid and binding obligation of the Company, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or laws affecting creditors’ rights' rights and remedies generally and subject, and as to enforceability, to general principles of equity principles; (ii) as regardless of the date of this Agreement, to the knowledge whether enforcement is sought in a proceeding at law or in equity). None of the Company, no other party the Purchased Companies or any of their Subsidiaries is in default in any material breach or violation of, or default under, respect under any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, nor, to the knowledge Knowledge of the Company, no fact the Purchased Companies or event exists that could give rise any of their Subsidiaries, is any other party to any claim of Material Contract in default thereunder in any material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractrespect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Metron Technology N V), Stock and Asset Purchase Agreement (Fsi International Inc)
Material Contracts. (a) Except for (iSection 3.21(a) this Agreement (of the Company Letter contains a true, complete and correct list of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which any property or asset of the Company or any of its Subsidiaries is bound, in each case as of the date of this Agreement, other than Company Plans listed in Section 3.18(a) of the Company Letter (collectively, the “Material Contracts”):
(i) each Contract that limits in any material respect the freedom of the Company, any of its Subsidiaries 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 in any material respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of products and services;
(ii) each partnership, joint venture or limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract entered into since December 31, 2014: (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 ownership interest or make an investment (other than the Company or any of its Subsidiaries), in each case, other than such Contracts that are immaterial to the Company and its Subsidiaries, taken as a whole;
(iv) each Contract with respect to the acquisition or disposition of any Person (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) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (other than in the ordinary course of business in connection with the development, sale or licensing of Company Products) or (B) any “earn-out” or similar contingent payment obligations, in each 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, equipment or products in the ordinary course of business;
(v) any and all Contracts required to be listed on (A) Section 3.16(f) or (B) Section 3.16(g) of the Company Letter;
(vi) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(vii) each Contract pursuant to which a third party is granted any exclusivity rights (other than customization work for customers relating to Company Products) or “most favored nations” provisions or minimum use, supply or display requirements that is binding on the Company or its Affiliates, in each case, which Contract is not terminable by the Company and each of its Affiliates party to such Contract upon ninety (90) or less days’ notice by the Company or its relevant Affiliates without the requirement of any payment, penalty, premium, fee, liability or other obligations;
(viii) other than instruments providing for indebtedness that would not, in the aggregate, exceed One Million Dollars ($1,000,000), each Contract 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 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, taken as a whole or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(ix) each collective bargaining agreement and each Contract with any labor union, works council or similar organization;
(x) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that materially (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 Five Hundred Thousand Dollars ($500,000) after the date of this Agreement; and
(xi) 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, correct and complete copy of each Material Contract in effect as of the date of this Agreement (has been made available to Parent and Buyer or publicly filed with the “Contracts”) filed as exhibits SEC prior to the date of this Agreement. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company SEC Reports Material Adverse Effect, (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 as of the date of this Agreement, 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 to date and, to the knowledge of the Company as of the date of this Agreement, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract to date, (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party of its Subsidiaries has received written notice of any, and, to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset knowledge of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyCompany, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock none of the Company or any of its wholly owned Company SubsidiariesSubsidiaries is in, prohibits default or material breach under (nor does there exist any condition which upon the pledging passage of time or the capital stock giving of the Company notice or any wholly owned Company Subsidiary both would cause such a default or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(viimaterial breach under) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (iiiv) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) neither the Company and the Company nor any of its Subsidiaries have not has received any written claim of material default under notice from any other party to any such Material Contract andthat such party intends to terminate, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreementrenew, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
Material Contracts. (a) Except for (iSchedule 4.14(a) sets forth, by reference to the applicable subsection of this Agreement (and the Contracts contemplated to be entered into hereunder by the CompanySection 4.14(a), (ii) contracts, arrangements or understandings all of the following Contracts to which the Company or any Company Subsidiary is and/or the Subsidiaries are a party as of the date of this Agreement (the “Contracts”) filed as exhibits to or by which the Company SEC Reports and/or the Subsidiaries or their respective assets or properties are bound (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) Contracts with Sellers, any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actits respective Affiliates or any current or former Related Person;
(ii) Contracts with any Contract relating to labor union or association representing any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryEmployee;
(iii) Contracts for the sale of any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the assets of the Company or the Subsidiaries other than in the Ordinary Course of Business or for the grant to any Company Subsidiary with Person of any Third Party, in each case that is material preferential rights to the business purchase any of the Company and the Company Subsidiaries taken as a wholeits assets;
(iv) all Contracts relating to the purchase for joint ventures, strategic alliances, partnerships, licensing arrangements, or sale sharing of any Shares profits or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingproprietary information;
(v) any Contract that limitsIntellectual Property Licenses, or purports except Company’s standard end user license to limit, the ability Proprietary Software and except licenses of the Company or any Company Subsidiary to compete in any material line commercial off-the-shelf Software available on reasonable terms for a license fee of business or with any person or entity or in any geographic area or during any period of timeno more than $20,000;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock Contracts containing (A) covenants of the Company or the Subsidiaries not to compete with any Person in any line of its wholly owned Company Subsidiariesbusiness, prohibits industry or geographical area or restricting the pledging solicitation, engagement or hiring of any Person or otherwise restricting the capital stock operation of the Company or any wholly owned Company Subsidiary the Subsidiaries or prohibits the issuance (B) covenants of any guaranty by other Person not to compete with the Company or the Subsidiaries in any wholly owned Company Subsidiaryline of business, industry or geographical area or restricting the solicitation, engagement or hiring of any Person;
(vii) Contracts relating to the acquisition (by merger, purchase of equity or assets or otherwise) of any Contract providing for operating business, material assets or capital stock of any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third PartyPerson;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Contract providing for Indebtedness or imposing a Lien on any of the assets of the Company or the Subsidiaries, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition from another person of property, mortgages, pledge agreements, security agreements, or disposition to another person, directly conditional sale or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000title retention agreements;
(ix) any Contract that are license agreements Contracts giving rise to material to the business Liabilities of the Company and or the Subsidiaries;
(x) all Contracts obligating the Company Subsidiariesor the Subsidiaries to provide or obtain products or services for a period of one (1) year or more or requiring the Company or the Subsidiaries to purchase or sell a stated portion of its requirements or outputs;
(xi) Contracts (A) relating to the employment of, taken as a wholeor the performance of services by, any Person, including any current or former Employee or Independent Contractor, (B) pursuant to which the Company or the Subsidiaries are or may become obligated to make any severance, retention, change of control, Transaction Expense, termination or similar payment to any current or former Employee, Independent Contractor or director, or (C) pursuant to which the Company or the Subsidiaries licenses are or may become obligated to make any bonus, sales compensation, or similar payment (whether in Intellectual Property the form of cash, stock, or licenses out Intellectual Property owned other securities but excluding payments constituting base salary);
(xii) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the Company or such the Subsidiaries;
(xiii) Contracts (or group of related Contracts) which involve the expenditure or receipt of more than $25,000 annually or $50,000 in the aggregate or require performance by any party more than one (1) year from the date hereof;
(xiv) Contracts with a Governmental Body;
(xv) Contracts (A) imposing any confidentiality obligation on the Company Subsidiary or Company the Subsidiaries or on any other Person (other than license routine nondisclosure agreements for commercially available software on standard terms or non-exclusive licenses granted routine confidentiality provisions contained in agreements entered into by the Company or the Subsidiaries in the ordinary course Ordinary Course of businessBusiness), (B) containing “standstill” or similar provisions, or (C) providing any right of first negotiation, right of first refusal or similar right to any other Person;
(xvi) Contracts related to any broker, distributor, dealer, manufacturer’s representative, franchise, agency (foreign or domestic), continuing sales or purchase, sales promotion, market research, marketing, consulting or advertising;
(xvii) Contracts containing a provision which provides exclusivity to any other Person, that any term of such Contract will be no less favorable to any other Person either individually or in the aggregate than similar provisions in any other Contract, or any other similar “most favored nation” or “most favored customer” provision in favor of any other Person;
(xviii) Contracts containing an obligation to indemnify any current or former officer or director of the Company and the Subsidiaries or to indemnify any other Person in connection with the acquisition (whether by means or merger, stock sale or asset sale) of any Person, except for any such Contract that is no longer in effect and under which no claim has been made or threatened;
(xix) Contracts involving any Significant Customer or Significant Provider;
(xx) settlement document or Contract with respect to any Legal Proceeding involving the Company or the Subsidiaries (but only to the extent such documents contain any unfulfilled or continuing obligations of Company);
(xxi) Contracts under which the Company or the Subsidiaries (A) collects or processes personally identifiable information, or (B) transfers personally identifiable information to a third party for that third party’s processing or use;
(xxii) Real Property Leases; and
(xxxiii) any Contract providing for any change of control Contracts that are otherwise material to the Company or similar payments to a third party in excess of US$1,000,000the Subsidiaries.
(b) Except as would not reasonably be expected to have a Company Each of the Material Adverse Effect, (i) each Material Contract Contracts is valid and binding on the Company or a Company Subsidiary and in full force and effecteffect and is the legal, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium valid and similar Laws binding obligation of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim which is a party thereto, and of material default under any such Material Contract the other parties thereto enforceable against each of them in accordance with its terms and, to the knowledge upon consummation of the Companytransactions contemplated by this Agreement, no fact shall, except as otherwise set forth on Schedule 4.14(b), continue in full force and effect without penalty or event exists that could give rise to any claim of material other adverse consequence following the Closing. The Company and the Subsidiaries are not in default under any Material Contract; , nor, to the Knowledge of the Company, is any other party to any Material Contract in breach of or default thereunder, and (iv) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default on the Company has not received, as and the Subsidiaries or any other party thereunder. No party to any of the date Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of this Agreement, any notice in writing from any person that such person intends significant dispute with respect to terminate any Material Contract. The Company and the Subsidiaries have Made Available true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Blucora, Inc.), Stock Purchase Agreement (Blucora, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or Neither Buyer nor any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary its Subsidiaries is a party to or bound by:by any (whether written or oral):
(a) employment, severance or non-competition agreements with Buyer Employees;
(b) operating lease, whether as lessor or lessee, with respect to any real property;
(c) contract, whether as licensor or licensee, for the license of any patent, know-how, trademark, trade name, service ▇▇▇▇, copyright, or other intangible asset (other than non-negotiated licenses of commercially available computer software);
(d) loan or guaranty agreement, indenture, or other instrument, contract, or agreement under which any money has been borrowed or loaned, which has not yet been repaid, or any note, bond, or other evidence of indebtedness has been issued and remains outstanding;
(e) mortgage, security agreement, conditional sales contract, capital lease, or similar agreement that effectively creates a lien on any assets of Buyer or any of its Subsidiaries (other than any conditional sales contract, capital lease, or similar agreement that creates a lien only on tangible personal property);
(f) contract restricting Buyer 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 Contract that is required to be filed by labor union or association representing the Company pursuant to Item 15 of Form 10-K under the Exchange ActBuyer Employees;
(iij) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of contracts and other agreements for the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares of its material assets or other securities of properties or for the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports grant to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in of any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or preferential rights to purchase any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (properties other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); andbusiness except for contracts or agreements pursuant to which the sale or purchase has been completed and there are no material obligations remaining;
(xk) any Contract providing for any change of control material warehousing, distributorship, representative, marketing, sales agency or similar payments to a third party in excess of US$1,000,000.advertising agreements; or
(bl) Except material contract" (as would defined in Item 601(b)(10) of Regulation S-K of the SEC). All of the foregoing are collectively called "Buyer Material Contracts." To the extent Buyer Material Contracts are evidenced by documents, true and complete copies have been delivered or made available to the Company. To the extent Buyer Material Contracts are not reasonably be expected evidenced by documents, written summaries have been delivered or made available to have a Company Material Adverse Effect, (i) each the Company. Each Buyer Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject unless the failure of any Buyer Material Contracts to bankruptcybe in full force and effect has not had and would not be reasonably likely to have, insolvencyindividually or in the aggregate, fraudulent transfer, reorganization, moratorium and similar Laws a Buyer Material Adverse Effect. Neither Buyer nor any of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementits Subsidiaries nor, to the knowledge of the CompanyBuyer, no any other party is in material breach of or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material in default under any such Material Contract and, to the knowledge of the CompanyBuyer Material Contracts, no fact except for breaches or event exists defaults that could give rise have not had and would not be reasonably likely to any claim of material default under any have, individually or in the aggregate, a Buyer Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Minntech Corp), Merger Agreement (Netsilicon Inc)
Material Contracts. (a) Except for Section 3.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date hereof, of each Contract (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Companyother than Plans), which is in effect as of the date hereof (ii) contracts, arrangements or understandings pursuant to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”its Subsidiaries have any continuing material obligations thereunder) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of and under which the Company or any Company Subsidiary is of its Subsidiaries are a party to or bound byby which the Company or any of its Subsidiaries or any of their respective properties or assets is bound, that:
(i) any Contract that is required to be filed by the Company a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange Securities Act, whether or not disclosed by the Company on a Current Report on Form 8-K;
(ii) any Contract relating to any creditinvolves, loan or facility arrangementby its terms, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured aggregate payments by any asset of the Company or any of its Subsidiaries or aggregate payments payable to the Company Subsidiaryor any of its Subsidiaries under such Contract (or any group of substantially related existing Contracts) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any $1,000,000 in either of the Company fiscal years ended December 31, 2023 and any Company SubsidiaryDecember 31, 2024 (including by means of royalty payments);
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case (A) contains covenants that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete limit in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting respect the payment of dividends or distributions in respect of the capital stock freedom of the Company or any of its wholly owned Subsidiaries to compete or engage in any line of business or to conduct business with any Person in any geographic area, (B) obligates the Company Subsidiariesor any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party, prohibits or sell any product or service exclusively to a single party, or (C) under which any Person has been granted the pledging of the capital stock right to manufacture, sell, market or distribute any product or service of the Company or its Subsidiaries on an exclusive basis to any wholly owned Company Subsidiary Person or prohibits group of Persons or in any geographical area;
(iv) provides for or governs the issuance formation, creation, operation, management or control of any guaranty material partnership or joint venture;
(v) provides for the use or license by the Company or any wholly of its Subsidiaries of any Intellectual Property Rights owned by a third party, other than Incidental Contracts;
(vi) provides for the use or license by any third party of any material Company SubsidiaryIntellectual Property Rights;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for involves the acquisition from another person or disposition to another persondisposition, directly or indirectly (by merger, license sale of stock, sale of assets or otherwise), by the Company or any of its Subsidiaries of any material assets (other than cash) or any material capital stock or other equity interests interest of another person for aggregate Person, other than the sale of inventory in the ordinary course of business, that has continuing indemnification, earn-out or milestone payments or other contingent consideration under such Contract payment obligations by the Company or any of its Subsidiaries;
(viii) constitutes a material manufacturing, supply, distribution or marketing agreement (or series group of substantially related existing Contracts) that provides for minimum purchase obligations by the Company or any of its Subsidiaries in excess of US$5,000,000any prospective twelve (12) month period;
(ix) contains any Contract that are license agreements material to royalty, dividend, milestone payment or similar contingent payment arrangement based on the business revenues or profits of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries;
(x) other than solely among the Company and wholly owned Subsidiaries licenses of the Company, relates to Indebtedness having an outstanding principal amount in Intellectual Property excess of $1,000,000;
(xi) involves the settlement of any pending or licenses out Intellectual Property owned currently threatened claim, action or proceeding;
(xii) is an agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with or imposed by any Governmental Authority;
(xiii) is a collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(xiv) is with a customer or supplier required to be listed in Section 3.25 of the Company Disclosure Letter or is with a sole source supplier of any goods or services to the Company or any of its Subsidiaries;
(xv) is an employment or consulting agreement with any current (A) executive officer of the Company or any of its Subsidiaries, (B) member of the Company Board, or (C) employee of the Company or any of its Subsidiaries with an annual base salary in excess of $300,000, other than those that are terminable by the Company or such any Subsidiary without advance notice and without Liability to the Company Subsidiary or Company its Subsidiaries (other than license agreements for commercially to make continued healthcare coverage available software on standard terms under COBRA or non-exclusive licenses granted in the ordinary course of business); andsimilar state Law;
(xxvi) any Contract providing is a Real Property Lease; or
(xvii) provides for any change annual capital expenditures after the date of control or similar payments to a third party this Agreement in excess of US$1,000,000$500,000 during the current or subsequent fiscal year or, together with all other Contracts providing for capital expenditures, provides for annual capital expenditures after the date of this Agreement in excess of $1,000,000 during the current or subsequent fiscal year. Each Contract of the type described in clauses (i) through (xvii) above, other than a Plan, is referred to herein as a “Material Contract.”
(b) True and complete copies of all Material Contracts (including all amendments, waivers or changes thereto) have been made available to Parent or its Representatives. Except as would not reasonably be expected to not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a the Subsidiary of the Company Subsidiary that is party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject to bankruptcythe Enforceability Exceptions, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as the Company and its Subsidiaries have complied with all obligations required to be performed or complied with by them under each Material Contract, (iii) there is no default under any Material Contract by the Company or any of the date of this Agreementits Subsidiaries, or, to the knowledge Knowledge of the Company, no by any other party is in material breach or violation ofthereto, or default under, any Material Contract; and (iiiiv) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge Knowledge of the Company, no fact or event exists that could give rise neither the Company nor any of its Subsidiaries has received any written notice from any third party to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person Contract that such person party intends to terminate such Material Contract for any Material Contractdefault or alleged default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Globus Medical Inc), Merger Agreement (Nevro Corp)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)other Transaction Agreements, as of the date of this Agreementhereof, none of the Company T or any Company Subsidiary its Subsidiaries is a party to nor are any of Company T's or its Subsidiaries' properties or assets bound by:
(i) any Contract that is would be required to be filed or furnished by the Company T pursuant to Item 15 19 and paragraph 4 of the Instructions to Exhibits of Form 1020-K F under the Exchange Act;
(ii) any Contract relating to any creditgranting a right of first refusal, loan first offer or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryfirst negotiation;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material Contract relating to the business formation, creation, operation, management or control of the Company and the Company Subsidiaries taken as a wholepartnership, joint venture, limited liability company or similar arrangement;
(iv) all Contracts relating to any Contract for the acquisition, sale or lease (including leases in connection with financing transactions) of material properties or assets of Company T (by merger, purchase or sale of any Shares assets or other securities of the Company stock or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingotherwise);
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeGovernmental Entity;
(vi) any Contract prohibiting involving the payment or receipt of dividends amounts by Company T or distributions in respect of the capital stock of the Company its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarymore than US$4,000,000;
(vii) any non-competition Contract providing for any indemnification, earn-out, installment or other contingent obligations Contract that purports to limit, curtail or similar payments that is still restrict in effect and could reasonably be expected to result in payment any material respect the ability of more than US$250,000, to or from the Company T or any Company Subsidiaryof its Subsidiaries to compete in any geographic area, by industry or to any Third Partyline of business;
(viii) any Contract providing for the acquisition from another person that contains a put, call or disposition similar right pursuant to another personwhich Company T or any of its Subsidiaries could be required to purchase or sell, directly or indirectly (by mergeras applicable, license or otherwise), of assets or capital stock or other any equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000any Person ;
(ix) any Contract that are license agreements material contains restrictions with respect to the business (A) payment of the dividends or any distribution with respect to equity interests of Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company T or any of the its Subsidiaries, (B) pledging of share capital of Company T or any of its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned (C) issuance of guaranty by the Company T or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course any of business)its Subsidiaries; andor
(x) any Contract providing material Company T IP Agreements other than agreements for Off-the-Shelf Software and UGC Agreements (all such Contracts described in clauses (i) through (x), and any change of control or similar payments to a third party in excess of US$1,000,000Company T VIE Contracts, collectively, the "Company T Material Contracts").
(b) Except as would not reasonably be expected to have a Each of the Company T Material Adverse Effect, (i) each Material Contract is Contracts constitutes the valid and legally binding on the obligation of Company T or a Company Subsidiary its applicable Subsidiary, enforceable in accordance with its terms and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, . There is no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Company T Material Contract andso listed either by Company T or, to Company T's knowledge, by any other party thereto, and no event has occurred that with the knowledge lapse of time or the Companygiving of notice or both would constitute a default thereunder by Company T or, no fact or event exists that could give rise to Company T's knowledge, any other party. No party to any such Company T Material Contract has given notice to Company T of or made a claim of against Company T with respect to any material breach or default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractthereunder.
Appears in 2 contracts
Sources: Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company)Agreement, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) agreements filed as exhibits to the Company SEC Reports Documents or (iii) as set forth in Section 3.15(a) 3.21 of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Schedules, as of the date of this Agreement, none neither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (excluding any Company Benefit Plan) that:
(i) would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act);
(ii) contains a non-compete, non-solicit, exclusivity or similar restriction that materially restricts the conduct of any line of business by the Company or any of its Affiliates or the solicitation of any business from any third party or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to engage in any line of business or in any geographic region or to solicit any business from any third party;
(iii) contains a non-solicit of the employees of any entity or similar restriction that materially restricts solicitation of management-level or professional prospective hires or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its Affiliates to solicit the employment or services of any management-level or professional prospective hire (in each case, other than customary non-solicitation provisions included in non-disclosure agreements);
(iv) that is a settlement, consent or similar agreement that would require the Company or any of its Subsidiaries to pay consideration of more than $500,000 after the date of this Agreement or that contains any material continuing obligations of the Company or any of its Subsidiaries;
(v) that includes a material indemnification obligation of the Company or any of its Subsidiaries which was granted outside of the Ordinary Course of Business;
(vi) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiary could be required to sell, as applicable, any equity interests of any person or material amount of assets;
(vii) that provides any current employees, officers or directors of the Company or any Company Subsidiary is a party to with annual base compensation in excess of $275,000, other than Contracts that are terminable without penalty or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actnotice or employment Contracts entered into on standard Governmental Entity forms;
(iiviii) any is a Contract relating that involves the payment or delivery of cash or other consideration or minimum purchase obligations (by or to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) in an amount or having a value in excess of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of $5,000,000 in the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangementsaggregate, or other agreement involving a sharing contemplates or involves the performance of profits, losses, costs services (by or liabilities by for the Company or any Company Subsidiary with Subsidiary) having a value in excess of $5,000,000 in the aggregate;
(ix) is a Company Real Property Lease pursuant to which the Company or any Third Party, in each case of its Subsidiaries leases real property that is material to the business of the Company and the Company Subsidiaries taken as a wholeor any of its Subsidiaries;
(ivx) all Contracts relating to is a Contract providing for the purchase of goods or sale of services or the development or construction of, or additions or expansions to, any Shares property or other securities of equipment under which the Company or any Company Subsidiary that has a fair market value has, or purchase price of more than US$1,000,000 under which there are material rights expects to incur, costs or obligations outstandingin excess of $5,000,000 in the aggregate;
(vxi) that is material and obligates the Company or any Contract that limitsCompany Subsidiary, or purports will obligate the Surviving Corporation, to limitprovide a party with “most favored nation” or “most favored customer” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(xii) provides for the formation, creation, operation, management or control of any material joint venture, partnership, strategic alliance, collaboration or other similar arrangement with a third party;
(xiii) is a Contract relating to any material currency or other hedging arrangement;
(xiv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any if its Subsidiaries or any guaranty of such obligations or guarantee of obligations of any Person that is not the Company or a Subsidiary (other than indebtedness among the Company and/or any of its Subsidiaries), in each case in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(xv) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise), or any real property, that would, in each case, reasonably be expected to result in the receipt or making by the Company or any Subsidiary of the Company of future payments (including “earnout” or other material contingent payment obligations) in excess of $1,000,000, in each case, except for purchases and sales of goods, services or inventory in the Ordinary Course of Business;
(xvi) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $500,000;
(xvii) limits or restricts the ability of the Company or any Company Subsidiary of its Subsidiaries to compete in any material line of business declare or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of pay dividends or make distributions in respect of the their capital stock of the Company stock, partner interests, membership interests or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryother equity interests;
(viixviii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in receives from any third party a license or similar right to any Intellectual Property or that is material to the Company, other than licenses out Intellectual Property owned by with respect to software that is generally commercially available;
(xix) that is a Contract entered into outside of the Ordinary Course of Business, pursuant to which the Company or such any of its Subsidiaries is a party, or is otherwise bound, and the contracting counterparty of which is a Governmental Entity; or
(xx) that is a Contract (or form thereof and a list of the parties thereto) between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly-owned Company Subsidiary) of the Company or any Company Subsidiary or Company Subsidiaries any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change that is a Company Benefit Plan). Each Contract of control or similar payments the type described in clauses (i) – (xx) of this Section 3.21(a) is referred to herein as a third party in excess of US$1,000,000“Company Material Contract”.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on Neither the Company or a Company nor any Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party Company is in material breach of or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under the terms of any such Company Material Contract and, to Contract. To the knowledge Knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, no other party to any notice Company Material Contract is in writing from material breach of or material default under the terms of any person Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that such person intends is party thereto and to terminate the Knowledge of the Company, of each other party thereto, and is in full force and effect, subject to the Enforceability Exceptions, except as would not or would not reasonably be expected to be material to the Company or any Material ContractSubsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.13(a) of the Company Disclosure Letter (such sets forth a list of all Material Contracts collectively, the “Material Contracts”), as of the date of this Agreement. For purposes of this Agreement, none “Material Contract” means any Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (other than this Agreement and the Company Benefit Plans) that:
(i) relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any creditits Subsidiaries in, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contractventure, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case similar arrangement that is material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(ivii) all Contracts relating to the purchase or sale of any Shares or other securities provides for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $ 750,000, other than (A) Indebtedness solely between or among any of the Company Subsidiary and any of its Subsidiaries and (B) letters of credit;
(iii) relates to the employment, severance, retention or indemnification of any employee of the Company or any of its Subsidiaries that has a fair market value receives compensation in an amount in excess of $250,000 per annum;
(iv) relates to the acquisition or purchase price disposition of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $ 750,000 (A) that was entered into after January 1, 2013, or (B) pursuant to which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by the Company or any of its Subsidiaries of more than US$1,000,000 under which there are material rights or obligations outstanding$250,000;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary of its Subsidiaries or prohibits the issuance of any guaranty guarantee by the Company or any wholly owned Company Subsidiaryof its Subsidiaries;
(viivi) any Contract providing for any indemnification, earn-out, installment is (or other contingent obligations contains provisions described in this clause (vi) that are or similar payments that is still in effect and could would reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viiibe) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Subsidiaries from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any person that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(vii) relates to any real property owned or leased by the Company or its Subsidiaries;
(viii) to which any Card Network, Regions Bank or any other BIN sponsor bank is party;
(ix) relates to an agreement with (a) Emdeon Business Services LLC or its Affiliates, (b) one of the top ten (10) resellers (based on revenues derived from such resellers during the twelve-month period ending on December 31, 2013), or (c) one of the top ten (10) fuel merchants (based on revenues derived from such fuel merchants during the twelve-month period ending on December 31, 2013); or
(x) (A) is not otherwise covered by clauses (i) through (ix) of this Section 3.13(a) and (B) either (x) is with a vendor or supplier pursuant to which the Company and its Subsidiaries made payments of $1 million or any more in the twelve-month period ending on May 31, 2014, or (y) is with a top ten (10) customer of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company and its Subsidiaries (other than license agreements based on revenues derived from such customers during the twelve-month period ending on December 31, 2013) for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000each Business Line.
(b) Except as would not reasonably be expected to have a Company All of the Material Adverse Effect, (i) each Material Contract is Contracts are valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to effect (except those that terminate or affecting creditors’ rights, and to general equity principles; (ii) as of are terminated after the date of this Agreement, to Agreement in accordance with their respective terms). To the knowledge Knowledge of the Company, no Person is challenging the validity or enforceability of any Material Contract. Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company, any of the other party is in material breach or violation parties thereto, has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a material default under any provision of, and neither the Company nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the . Company has not received, as delivered to Parent a complete copy of the date of this Agreement, any notice in writing from any person that such person intends to terminate any each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Material Contracts. (a) Except for (iSection 4.20(a) of the Company Disclosure Schedule contains an accurate and complete list of each contract described below in this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (iiSection 4.20(a) contracts, arrangements or understandings to under which the Company or any Company Subsidiary is a party of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise), in each case as of the date of this Agreement hereof (the “Contracts”) filed as exhibits to other than the Company SEC Reports or Plans) (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any creditpartnership, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contractventure, strategic cooperation alliance, collaboration, co-promotion or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case research and development project contract that is material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(ivii) all Contracts any contract relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock outstanding indebtedness of the Company or any of its Subsidiaries for borrowed money or any financial guaranty thereof in an amount in excess of $1,000,000, other than (A) contracts among the Company and its wholly owned Company Subsidiaries, prohibits Subsidiaries and (B) financial guarantees entered into in the pledging ordinary course of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarybusiness;
(viiiii) any Contract providing contract (excluding licenses for any indemnification, earncommercial off-out, installment or other contingent obligations or similar payments that is still in effect the-shelf computer software and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business) to which the Company or any of its Subsidiaries is a party pursuant to which the Company or any of its Subsidiaries (A) is granted any license or right to use, or covenant not to sue with respect to, any Intellectual Property of a Third Party or (B) has granted to a Third Party any license or right to use, or covenant not to sue with respect to, any Intellectual Property, and, in the case of both (A) and (B), which contract is material to the Company and its Subsidiaries, taken as a whole;
(iv) any agreement for the purchase, sale or lease of supplies, goods or products or for the furnishing or receipt of services, in each case, which provides for payments to or by the Company and its Subsidiaries that exceed $2,000,000 annually or $7,500,000 in the aggregate;
(v) any shareholders, investors rights or registration rights agreement;
(vi) any other agreement which provides for payments to or by the Company and its Subsidiaries that exceed $5,000,000 individually or $15,000,000 in the aggregate;
(vii) any Labor Agreement;
(viii) any contract that is a settlement, conciliation or similar agreement with any Governmental Authority or Person or pursuant to which the Company or any of its Subsidiaries has any material outstanding obligation;
(ix) any contract (A) prohibiting, or purporting to limit or restrict the Company’s, any of the Company’s Affiliates’ or any of its Subsidiaries’ ability to compete or to conduct its businesses in any geographical area or the type or line of business in which the Company or any of its Subsidiaries is engaged, (B) providing “most favored nation” or similar provisions where the pricing, discounts or benefits to any customer or other business relation of the Company or any of its Subsidiaries changes based on the pricing, discounts or benefits offered to other customers or business relations, (C) granting a right of first refusal or right of first offer or similar right for any line of business or assets of the Company or any of its Subsidiaries, (D) establishing an exclusive sale or purchase or similar obligation with respect to any obligation or geographical area or (E) imposing any minimum requirements or obligations of the Company or any of its Subsidiaries for any minimum purchase, expenditure, investment, sale, payment, production, supply, output, distribution or similar minimum requirements obligations or any take-or-pay provision in favor of a third party; and
(x) any Contract providing for contract related to any change completed, pending or future (A) disposition, divestiture or acquisition (whether by merger, sale of control stock, sale of assets or similar payments otherwise) of any business, equity interests or material portion of assets or properties by the Company or any of its Subsidiaries or (B) consolidation, recapitalization, reorganization or other business combination with respect to the Company or any of its Subsidiaries, in each case, under which the Company or any of its Subsidiaries has outstanding payment or indemnification obligations; and
(xi) any other contract, arrangement, commitment or understanding that is a third party “material contract” (as such term is defined in excess Item 601(b)(10) of US$1,000,000Regulation S-K of the SEC).
(b) Except as for breaches, violations or defaults which would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof (i) each Material Contract contract set forth in Section 4.20(a) of the Company Disclosure Schedule is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as neither the Company nor any of its Subsidiaries, nor to the Knowledge of the date of this Agreement, to the knowledge of the Company, no Company any other party to any such contract, is in material breach or violation of, or default under, of any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractprovision thereof.
Appears in 2 contracts
Sources: Merger Agreement (Chase Corp), Merger Agreement (Chase Corp)
Material Contracts. (a) Except for (x) as set forth on Section 6.16(a) of the Caesars Disclosure Schedule and (y) solely with respect to subsections (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (iiv) contractsand (vi) of this Section 6.16(a), arrangements or understandings for any Contract to which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is party or by which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is bound which is binding upon any Company Party or its Subsidiaries in substantially the same manner as such Contract is binding upon other Subsidiaries of CEOC or Parent, (other than, in the case of any Contracts described in the foregoing clause (y), any Contracts which involve any payments directly by or to any Company Party or its Subsidiaries, including through an allocation to any Company Party or its Subsidiaries, in excess of the amounts set forth in subsections (i), (v) and (vi) of this Section 6.16(a)), none of the Company Parties or any Company Subsidiary their respective Subsidiaries is a party to or bound by any of the following Contracts as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the each a “Material ContractsContract”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required that, by its terms, requires payments by any Company Party or its Subsidiaries in excess of $750,000 per annum or $1,500,000 in the aggregate for the stated term of such Contract or which may not be terminated by such Company Party or its Subsidiaries within twelve (12) months from the date of this Agreement without such Company Party or its Subsidiaries being obligated to be filed by the Company pursuant to Item 15 pay any penalty, premium or additional payments in amounts greater than $750,000 in respect of Form 10-K under the Exchange Actsuch Contract;
(ii) any Contract relating to for Indebtedness of any credit, loan Company Party or facility arrangement, guarantee its Subsidiaries or Indebtedness any Contract granting any Person a Lien (whether other than a Permitted Lien) on all or not incurred, assumed, guaranteed or secured by any asset part of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryPurchased Interests;
(iii) (A) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company Contract pursuant to which CLC or any Company Subsidiary Party or its Subsidiaries has agreed to any material restriction on the right of CLC or any Company Party or its Subsidiaries to use or enforce any Purchased Intellectual Property or Other Material IP, other than with respect to commercially available software, or (B) any Third Partymaterial Contract pursuant to which CLC or any Company Party or its Subsidiaries agrees to license, encumber, transfer or sell rights in each case that is material or with respect to any Purchased Intellectual Property, other than any non-exclusive licenses entered into by CLC or any Company Party or its Subsidiaries in the business ordinary course of the Company and the Company Subsidiaries taken as a wholebusiness;
(iv) all Contracts relating to any Contract containing any covenant materially limiting the purchase or sale ability of any Shares Company Party or other securities its Subsidiaries to engage in any line of the Company business or in any territory or to compete with any business or Person or that otherwise materially limits any Company Subsidiary that has a fair market value Party or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingits Subsidiaries to conducting its business in the manner it is currently conducted;
(v) any Contract that limitsjoint venture, partnership or purports to limitsimilar Contract, the ability which involves a sharing of the Company revenues, profits, cash flows, expenses or any Company Subsidiary to compete losses with other Persons in any material line excess of business or with any person or entity or in any geographic area or during any period of time$750,000 annually;
(vi) any Contract prohibiting the payment that involves royalties payable to another Person in excess of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary$750,000 annually;
(vii) any Contract providing for pursuant to which any indemnificationCompany Party or its Subsidiaries has acquired a business or entity (or any equity interest therein), earn-outor assets of a business or entity, installment whether by way of merger, consolidation, purchase of stock, purchase of assets or other contingent obligations or similar payments that is still in effect exclusive license and could reasonably be expected pursuant to result in payment of more than US$250,000, to or from which the Company or has any Company Subsidiary, by or to any Third Party;continuing material obligations as of the date hereof; or
(viii) any other Contract providing for the acquisition from another person or disposition to another person, directly or indirectly obligation not listed in clauses (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract i) through (or series of related Contractsvii) in excess of US$5,000,000;
(ix) any Contract that are license agreements is otherwise material to the business of the any Company and the Company Party or its Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is valid and binding on upon each of the Company Parties or a Company Subsidiary their respective Subsidiaries party thereto (and, to the Knowledge of the Caesars Parties, on all other parties thereto), in accordance with its terms and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as there is no breach or violation of the date of this Agreementor default by any Company Party or its Subsidiaries or, to the knowledge Knowledge of the CompanyCaesars Parties, no by any other party is in under any material breach provision of the Material Contracts, whether or not such breach, violation or default has been waived, and (iii) no event has occurred with respect to any Company Party or its Subsidiaries or, to the Knowledge of the Caesars Parties, any other party, which, with notice or lapse of time or both, would constitute a breach, violation or default of, or default give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under, any material provision of the Material Contracts. None of the Caesars Parties or any of their respective Affiliates has received any written notice (or, to the Knowledge of the Caesars Parties, any oral or other notice) of the intention of any Person to terminate, nor has there been any termination of, any Material Contract; (iii) the Company . The Caesars Parties have made available to Growth Partners a true, correct and the Company Subsidiaries have not received any written claim complete copy of material default under any such all Material Contract andContracts, to the knowledge of the Companytogether with all amendments, no fact waivers or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractother changes thereto.
Appears in 2 contracts
Sources: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)
Material Contracts. (a) Except for Subsections (i) this Agreement through (and the Contracts contemplated to be entered into hereunder by the Company), (iixvi) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.18(a) of the Company Disclosure Letter Schedule set forth an accurate and complete list of all of the following types of Contracts (x) to which any Group Company is a party, excluding in each case, Contracts under which such Group Company has no outstanding rights or obligations and (y) have not been filed with or furnished to the SEC as an exhibit to the Company’s filings with the SEC (such Contracts collectively, as are required to be set forth in Section 3.18(a) of the Company Disclosure Schedule being the “Material Contracts”), as of the date of and, other than this Agreement, none of the Company or any Company Subsidiary of its Subsidiaries is a party to or bound byby any Material Contracts not listed in Section 3.18(a) of the Company Disclosure Schedule:
(i) any Contract that is would be required to be filed by the Company pursuant to Item 15 4 of the Instructions to Exhibits of Form 1020-K F under the Exchange Act;
(ii) any Contract relating to any credit(A) the formation, loan creation, operation, management or facility arrangementcontrol of a partnership, guarantee joint venture, limited liability company or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of similar arrangement with the Group Company or any Company Subsidiary) making investment in the amount of more than US$2,000,000 for each such Contract individually50,000,000, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iiiB) any joint venture Contract, strategic cooperation or partnership arrangements, or (C) other agreement similar agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the any Group Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary 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), or investment in, any person other than a Group Company Subsidiaries taken as a wholeor any Contract relating to the making of any such loan, advance or investment that is material to the financial status of the Company;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities Contract involving Indebtedness of the Company or any of its Subsidiaries in excess of US$50,000,000;
(v) any Contract granting or evidencing a Lien on any material properties or assets of the Company Subsidiary or any of its Subsidiaries, other than a Permitted Encumbrances;
(vi) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that has have a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly 50,000,000 (by merger, license purchase or otherwise), sale of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (otherwise) or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries have continuing, indemnification, guarantee, “earn-out” or other contingent payment obligations;
(vii) any Contracts involving any resolution or settlement of any actual or threatened material litigation, arbitration, claim or other dispute;
(viii) any Contract for the Company Subsidiaries licenses in Intellectual Property employment of any officer, individual employee or licenses out Intellectual Property owned other person by the Company or such Company Subsidiary any of its Subsidiaries on a full-time or Company Subsidiaries consulting basis or any severance agreements calling for payments in excess of US$10,000,000 annually;
(other than license agreements for commercially available software on standard terms or ix) any non-exclusive licenses granted competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ordinary course ability of business); andthe Company or any of its Subsidiaries to compete in any geographic area, industry or line of business that is material to the business of the Company;
(x) any Contract providing for any change of control that contains a put, call or similar payments right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a third fair market value or purchase price of more than US$50,000,000;
(xi) any Contract (other than Contracts granting Company Options or Company RSUs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$1,000,000.50,000,000 to be made by the Company or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$50,000,000;
(bxii) Except as would any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xiii) any material Contract providing for (A) a license, covenant not to s▇▇ or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, other than agreements for off-the-shelf Software, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property;
(xiv) any material Contract outside the ordinary course of business of the Company or not on arm’s length terms between the Company or any of its Subsidiaries, on one hand, and any Affiliate or other entity in which any Group Company has a direct or indirect equity interest, or director, or executive officer, or any person beneficially owning ten percent (10%) or more of the outstanding Equity Securities of any Group Company or any of their respective Affiliates (other than the Group Companies), or immediate family members or any of the respective Affiliates of such family members, on the other hand;
(xv) any Contract which have not been covered by subsections (i) through (xiv) and involves consideration of more than US$50,000,000, in the aggregate, over the remaining term of such Contract; or
(xvi) any other Contract which could reasonably be expected to have a Company Material Adverse Effect, .
(i) Each Material Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against the such Group Company in accordance with its terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding on obligation of the Company or a Company Subsidiary and counterparty thereto, in full force and effecteffect and enforceable against such counterparty in accordance with its terms, subject to bankruptcythe Bankruptcy and Equity Exception, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (iiiii) as of the date of this Agreementno Group Company and, to the knowledge of the Company, no other party counterparty, is or is alleged to be in material breach or violation of, or default under, any Material Contract; (iiiiv) to the knowledge of the Company, no person intends to terminate or cancel any Material Contract; (v) no Group Company and the Company Subsidiaries have not has received any written claim of material default under any such Material Contract and, to the knowledge of the Company’s knowledge, no fact or event exists that could would give rise to any claim of material default under any Material Contract; and (ivvi) neither the Company has not receivedexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, as give rise to cancellation rights under, or otherwise adversely affect any of the date material rights of this Agreement, any notice in writing from any person that such person intends to terminate Group Company under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts, including any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
Material Contracts. (a) Except for (i) this Agreement (and for the Contracts contemplated to be entered into hereunder filed with the SEC by the Company)Company as exhibits to reports, (ii) contractsschedules, arrangements or understandings forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Agreement, Section 3.15(a4.01(p) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Schedule sets forth a true and complete list, as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byof:
(i) any each Contract that is would be required to be filed by the Company as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange Securities Act;
(ii) each Contract to which the Company or any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of its Subsidiaries is a party that materially restricts the ability of the Company or any Company Subsidiary) of more than US$2,000,000 for each its Subsidiaries to compete in any business or with any person in any geographical area or grants a material right of first refusal or first offer or similar right (or will impose such Contract individually, other than any Indebtedness between limitations on Parent or among any of its Affiliates following the Company and any Company SubsidiaryOffer or the Merger);
(iii) each Contract that requires payments by or to the Company and/or its Subsidiaries in an amount in excess of five hundred thousand dollars ($500,000) per annum, except for any joint venture Contractsuch Contract that may be canceled, strategic cooperation without penalty or partnership arrangementsother liability to the Company or any of its Subsidiaries, upon notice of 90 days or less other than sales or purchase orders in the ordinary course of business;
(iv) each Contract relating to indebtedness for borrowed money in excess of five hundred thousand dollars ($500,000) or providing for the creation of any encumbrance upon any of the material assets of the Company or any of its Subsidiaries;
(v) each Contract that is a material license, sublicense or other contract pursuant to which the Company or a Subsidiary of the Company is authorized to use any third party Intellectual Property that is material to the business of the Company, excluding generally commercially available, off-the-shelf software programs, or other agreement involving a sharing of profits, losses, costs or liabilities pursuant to which any third party (x) is authorized to use Material Intellectual Property owned by the Company or any Subsidiary of the Company Subsidiary with any Third Party, in each case that is material to the business of the Company or (y) has obtained and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating continues to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material have exclusive rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeMaterial Intellectual Property;
(vi) each Contract with respect to co-promotion of, or collaboration with respect to, any product or product candidate or drug discovery platform, a material joint venture or material partnership agreement (excluding information technology Contracts or license or similar agreements with respect to Intellectual Property);
(vii) each Contract prohibiting which would prohibit the payment of dividends or distributions in respect consummation of the capital stock of Offer or the Merger; and
(viii) each Contract with or binding upon the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging Subsidiaries or any of their respective properties or assets that is of the capital stock type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in clauses (i) through (viii) above is referred to herein as a “Company Material Contract”. Including Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, the Company has previously made available to Parent complete and accurate copies of each Company Material Contract. Each of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract Contracts is valid and binding on the Company or a the Subsidiary of the Company Subsidiary party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject except for such failures to bankruptcybe valid and binding or to be in full force and effect that would not reasonably be expected to have, insolvencyindividually or in the aggregate, fraudulent transfer, reorganization, moratorium and similar Laws a Material Adverse Effect. There is no default under any Company Material Contract by the Company or any of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementits Subsidiaries or, to the knowledge Knowledge of the Company, no by any other party is in material breach thereto, and no event has occurred that with the lapse of time or violation of, the giving of notice or both would constitute a default under, any Material Contract; (iii) thereunder by the Company and the Company or any of its Subsidiaries have not received any written claim of material default under any such Material Contract andor, to the knowledge Knowledge of the Company, no fact by any other party thereto, in each case except as would not reasonably be expected to have, individually or event exists that could give rise to any claim of material default under any in the aggregate, a Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Material Contracts. (a) Except for (i) this Agreement (and Agreement, the Company Benefit Plans or Contracts contemplated to be entered into hereunder filed by the Company)Company with the SEC as exhibits to its Annual Report on Form 10-K for the fiscal year ended December 31, (ii) contracts2005 or to subsequent Exchange Act reports filed prior to the date hereof, arrangements or understandings Section 3.21 of the Company Disclosure Letter sets forth all of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement or by which it is bound (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract Contracts that are a “material contract” (as such term is required to be filed by the Company pursuant to defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC) to the Company;
(ii) Contracts that contain any Contract relating provision that prior to any credit, loan or facility arrangement, guarantee following the Effective Time would by its terms materially restrict or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset alter the conduct of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangementsbusiness of, or other agreement involving a sharing of profits, losses, costs purport to materially restrict or liabilities by alter the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line conduct of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits Parent or, to the pledging Company’s Knowledge, any Affiliate of the capital stock Parent (other than any director, officer or employee of any of the Company or any wholly owned Company Subsidiary of its Subsidiaries);
(iii) Contracts for partnerships, joint ventures or prohibits strategic alliances;
(iv) Contracts in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year (A) for the issuance acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2004, other than in the ordinary course of business, (B) that grant to any guaranty Person any preferential rights to purchase any of its properties or assets or (C) relating to the acquisition by the Company or any wholly owned of its Subsidiaries of any operating business or the capital stock of any other Person;
(v) Loan or credit agreements, mortgages, indentures, notes or other Contracts or instruments evidencing indebtedness for borrowed money by the Company Subsidiaryor any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries;
(vi) Contracts relating to the license of material Company Intellectual Property to a third Person;
(vii) any Contract providing for any indemnificationMortgages, earn-outpledges, installment security agreements, deeds of trust or other contingent obligations Contracts granting a Lien on any material real property or similar payments that is still in effect and could reasonably be expected to result in payment any material property or assets of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partyof its Subsidiaries;
(viii) Company real property leases and all leases related to any Contract providing for material tangible personal property of the acquisition from another person Company or disposition to another person, directly or indirectly (by merger, license or otherwise), any of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000its Subsidiaries;
(ix) Contracts, purchase agreements or other similar documents that obligate the Company or any Contract of its Subsidiaries in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year or for which another Person is obligated to the Company or any of its Subsidiaries in excess of such amount;
(x) Collective bargaining agreements or other Contracts with any labor union and employment Contracts (other than for employment at-will or similar arrangements) that are license agreements not terminable by the Company without notice and without cost to the Company;
(xi) Contracts for indemnification or guarantees that are or could be material to the business of the Company and the Company its Subsidiaries, taken as a wholewhole (in each case, pursuant to under which the Company or any of its Subsidiaries has continuing obligations as of the date hereof);
(xii) Contracts that give any guarantee or warranty of products or services of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned its Subsidiaries, other than any warranty or guarantee implied by Law or consistent with those offered by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(xxiii) Contracts that (A) grant any Contract providing for exclusive distribution agreement or supply agreement or other exclusive rights, (B) grant any change “most favored nation” rights, rights of control first refusal, rights of first negotiation or similar payments rights with respect to any product, or (C) contain any provision that requires the purchase of all or a given portion of the Company’s or any of its Subsidiaries’ requirements from a given third party in excess of US$1,000,000party, or any similar provision.
(bi) Except The Company has heretofore made available to Parent correct and complete copies of each Company Material Contract in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto; (ii) each Company Material Contract is valid, binding and in full force and effect and is enforceable in all material respects in accordance with its terms by the Company and its Subsidiaries party thereto; and (iii) neither the Company nor any of its Subsidiaries is in default under, has received written notice of, or otherwise has Knowledge of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Material Contract, except where such defaults would not reasonably be expected to not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Material Contracts. Except for this Agreement and the Related Documents and except as set forth on Schedule 2.10:
(a) Except for There are no agreements, understandings, instruments, contracts or transactions (iwhether written or oral) this Agreement between the Company or its subsidiaries and any Affiliate (and as defined in the Contracts contemplated to be entered into hereunder by the CompanyShareholders Agreement).
(b) There are no agreements, understandings, instruments, contracts or transactions (iiwhether oral or written) contracts, arrangements or understandings to which the Company or any subsidiary of the Company Subsidiary is a party as or by which it or any of the date of this Agreement its assets is bound that involve (the “Contracts”i) filed as exhibits to the Company SEC Reports obligations of, or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectivelypayments by or to, the “Material Contracts”), as of the date of this Agreement, none of the Company or its subsidiaries in excess of $250,000 in any Company Subsidiary is a party to or bound by:
twelve (i12) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
month period, (ii) any Contract relating to any credit, loan the issuance of debt or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other equity securities of the Company or its subsidiaries or the incurrence of indebtedness or the pledge or grant of any Company Subsidiary that has a fair market value security interest or purchase price encumbrance on the Company’s or its subsidiaries’ assets, (iii) restrictions on the development, provision or distribution of more than US$1,000,000 under which there are material rights the Company’s or obligations outstanding;
its subsidiaries’ products or services, (iv) any employment, severance or consulting agreement, (v) the disposition of a material portion of the Company’s or its subsidiaries’ assets or the acquisition of the business or securities or other ownership interests of another Person, (vi) any agreement under which the Company or its subsidiaries is restricted from carrying on any line of business or carrying on business in any geographic location, (vii) any Reinsurance Contract that limitsor (viii) any fees or payments to any Person (including any broker, investment bank or purports other finder) relating to limit, any financing (public or private) or the ability sale of the enterprise value of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
its subsidiaries (vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiariesthrough merger, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnificationconsolidation, earn-outasset transfer, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by mergerequity transfer, license or otherwise) (each, a “Material Contract”), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(bc) Except as would not reasonably be expected Schedule 2.10 contains a complete list of all Material Contracts. With respect to have a Company each Material Adverse EffectContract, (i) each such Material Contract is valid and binding on legal, valid, binding, enforceable (subject to the Company or a Company Subsidiary Enforceability Exceptions) and in full force and effecteffect against the Company or its subsidiaries, subject to bankruptcyas applicable, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of neither the date of this AgreementCompany, its subsidiaries, nor, to the knowledge of the Company, no any other party thereto, is in breach or default in any material respect, and no event has occurred that with notice or lapse of time would constitute a material breach or violation of, or default under, any Material Contract; (iii) on the part of the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract andor its subsidiaries or, to the knowledge of the Company, no fact any other party thereto, or event exists that could give rise to any claim of material default permit termination, modification or acceleration, under any such Material Contract; Contract and (iviii) neither the Company has not receivedor its subsidiaries nor, as to the knowledge of the date of this AgreementCompany, any notice in writing from other party thereto, has repudiated any person that provision of such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Class a Common Share Subscription Agreement (Essent Group Ltd.), Class a Common Share Subscription Agreement (Essent Group Ltd.)
Material Contracts. (a) Except for (iSection 3.15(a) this Agreement (and of the Disclosure Letter lists the following types of Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party or any of their respective assets are bound (such Contracts as of the date of this Agreement (the “Contracts”) filed as exhibits are required to the Company SEC Reports or (iii) as be set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, being the “Material Contracts”)):
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) with respect to the Company and the Company Subsidiaries;
(ii) all Contracts evidencing indebtedness for borrowed money, whether as borrower or lender;
(iii) all joint venture, partnership, strategic alliance and business acquisition or divestiture Contracts under which the Company or a Company Subsidiary has any material obligation;
(iv) all Contracts relating to issuances of securities of the date of this Agreement, none of Company or any Company Subsidiary (other than the Company Stock Awards);
(v) all Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract and that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is are material to the business and operations of the Company and the Company Subsidiaries Subsidiaries, taken as a whole;
(ivvi) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limitsmaterially limit, or purports purport to limit, materially limit the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vivii) all employment, consulting, change in control, “golden parachute,” severance or termination Contracts (in each case with respect to which the Company or any Contract prohibiting Company Subsidiary has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company or any Company Subsidiary, (y) member of the Company Board or the board of directors of any Company Subsidiary or (z) employee providing for an annual base salary in excess of $100,000;
(viii) all Contracts providing for indemnification or any guaranty by the Company or any Company Subsidiary, in each case that is material to the Company and the Company Subsidiaries, taken as a whole, other than any guaranty by the Company or a Company Subsidiary of any of the obligations of the Company or Company Subsidiary;
(ix) all Contracts relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of the Company Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $250,000;
(x) all material Contracts that obligate the Company or any of the Company Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(xi) all Contracts that prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned the Company Subsidiaries, prohibits prohibit the pledging of the capital stock of the Company or any wholly owned of the Company Subsidiary Subsidiaries or prohibits prohibit the issuance of any guaranty guarantee by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to ; and
(xii) all other Contracts under which the Company or any of the Company Subsidiaries licenses is obligated to make payments or incur costs in Intellectual Property or licenses out Intellectual Property owned excess of $500,000 in any year and which are not otherwise described in clauses (i)–(xi) above. The Company has made available to Parent correct and complete copies of all Material Contracts, including any amendments thereto. Except as expressly described in Section 3.15(a), Material Contracts shall not include (A) Insurance Contracts issued by the Company or such any Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
, (xB) Reinsurance Contracts (whether assumed or ceded) entered into by a Company Subsidiary in the ordinary course of business, (C) Contracts between the Company or any Contract providing for Company Subsidiary, on one hand, and any change broker, managing general underwriter or managing general agent, on the other hand, entered into in the ordinary course of control business and (D) Contracts between the Cost Management Subsidiary and a recipient of, or similar payments to a third party consultant or employee for, medical and indemnity care cost management services, entered into in excess the ordinary course of US$1,000,000business.
(b) Except as would not reasonably be expected to have constitute a Company Material Adverse EffectEffect or as set forth in Section 3.15(b) of the Disclosure Letter, (i) each Material Contract is a legal, valid and binding on the Company or a Company Subsidiary and agreement, in full force and effecteffect and enforceable against the Company or applicable Company Subsidiary in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as none of the date of this AgreementCompany or any Company Subsidiary or, to the knowledge of the Company, no other any third party has received any claim of default under or cancellation of any Material Contract and none of the Company or any Company Subsidiary is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company’s knowledge, no fact other party is in breach or event exists that could give rise to any claim of material violation of, or default under under, any Material Contract; and (iv) neither the execution of this Agreement nor the consummation of the Transactions shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of the Company has not received, as of the date of this Agreement, or any notice in writing from any person that such person intends to terminate Company Subsidiary under any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Enstar Group LTD), Merger Agreement (SeaBright Holdings, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(aSchedule 4.16(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Schedules lists, as of the date hereof, each of this Agreement, none the following contracts and agreements of the Company or any Company Subsidiary is a party to or bound by:and its Subsidiaries (such contracts and agreements as described in this Section 4.16(a) being “Material Contracts”):
(i) any Contract all contracts or agreements that is required to be filed provide for payment or receipt by the Company pursuant to Item 15 or its Subsidiaries of Form 10-K under more than $25,000 per year or which the Exchange ActCompany or its subsidiaries cannot terminate without penalty on less than thirty (30) days’ notice;
(ii) any Contract all contracts and agreements relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryIndebtedness;
(iii) any joint venture Contract, strategic cooperation all contracts and agreements that limit or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material purport to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, limit the ability of the Company or any Company Subsidiary its Subsidiaries to compete in any material line of business or with any person or entity Person or in any geographic area or during any period of time;
(iv) all joint venture, partnership or similar agreements or arrangements;
(v) all contracts or agreements pursuant to which the Company or its Subsidiaries has granted any exclusive or “most-favored’ rights to any third party;
(vi) all contracts or agreements relating to any Contract prohibiting the payment of dividends or distributions in respect Encumbrance upon any of the capital stock assets or properties o of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnificationsurety, earn-outguarantee, installment or other contingent obligations indemnification or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to contract or from agreement involving potential obligations payable by the Company or any Company Subsidiary, by or to any Third Partyits Subsidiaries;
(viii) all contracts or agreements relating to the making of any Contract providing for the acquisition from another person or disposition to another personloan, directly or indirectly (by merger, license or otherwise), of assets advance or capital stock contribution to, or investment in, any other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000Person;
(ix) all contracts or agreements relating to the acquisition or disposition (including by way of merger, consolidation, acquisition or sale of stock or assets or otherwise) of any Contract material assets, properties or securities;
(x) all energy purchase agreements;
(xi) all service and maintenance agreements, including any long term service agreements;
(xii) all gas commodity contracts;
(xiii) all energy procurement contracts; and
(xiv) any other contract or agreement that are license agreements is material to the business of the Company and the Company its Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is valid and binding on the Company or a Company Subsidiary the applicable Subsidiary, as the case may be, and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii. Except as set forth on Schedule 4.16(b) as of the date of this AgreementDisclosure Schedules, to the knowledge none of the Company, no other party any of its Subsidiaries nor, to the Knowledge of the Company, any counterparty to any Material Contract is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the which it is a party. The Company has not received, as previously delivered to Buyer a complete and accurate copy of the date of this Agreement, any notice in writing from any person that such person intends to terminate any each Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Energy & Power Solutions, Inc.), Purchase Agreement (Energy & Power Solutions, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as As of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or bound by, whether in writing or not, any contract, arrangement, commitment or understanding that:
(i) (A) contains any Contract material exclusivity or similar provision (including with respect to any Intellectual Property Rights) that is required to be filed by binding on the Company pursuant or any of its Subsidiaries (or, after the Effective Time, purportedly New Charter or any of its Subsidiaries) or (B) otherwise limits or restricts in any material respect the Company or any of its Subsidiaries (or, after the Effective Time, purportedly New Charter or any of its Subsidiaries) from (1) engaging or competing in any material line of business in any location or with any Person, (2) selling any products or services of or to Item 15 of Form 10-K under the Exchange Actany other Person or in any geographic region or (3) obtaining products or services from any Person;
(ii) includes (A) any Contract relating “most favored nations” terms and conditions (including with respect to pricing) granted by the Company to a Third Party, (B) any credit, loan arrangement whereby the Company grants any right of first refusal or facility arrangement, guarantee right of first offer or Indebtedness similar right to a Third Party or (whether C) any arrangement between the Company and a Third Party that limits or not incurred, assumed, guaranteed or secured by purports to limit in any asset respect the ability of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries (or, other than any Indebtedness between after the Effective Time, purportedly New Charter or among any of the Company and its Subsidiaries) to own, operate, sell, license, transfer, pledge or otherwise dispose of any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation material assets or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Partybusiness, in each case of clauses (A), (B) and (C), that is material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(iii) is a joint venture, alliance or partnership agreement that either (A) is material to the Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof, but excluding any joint venture, alliance or partnership agreement to which Parent or any of its Subsidiaries is a party;
(iv) all Contracts 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 in an amount in excess of $100,000,000 individually;
(v) is a material interest, rate, currency or other swap or derivative transaction (other than those entered into in the ordinary course of business solely for hedging purposes);
(vi) is an acquisition agreement, asset purchase or sale of any Shares agreement, stock purchase or sale agreement or other securities 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 $100,000,000 or (B) any other Person has the right to acquire any assets of the Company or any Company Subsidiary that has of its Subsidiaries (or any interests therein) after the date of this Agreement with a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary$100,000,000;
(vii) any Contract providing for any indemnificationis a material contract, earn-outarrangement, installment commitment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from understanding with the Company FCC or any Company Subsidiary, by other Governmental Authority relating to the operation or to any Third Partyconstruction of Cable Systems that are not fully reflected in the Franchises;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, is an agreement pursuant to which the Company or any of the Company its Subsidiaries licenses in Intellectual Property manages, operates or licenses out Intellectual Property provides material services to any Cable Systems that are not, directly or indirectly, wholly owned by the Company (including any agreement pursuant to which the Company or any of its Subsidiaries is required to cause any such Cable Systems to be included in programming service distribution agreements and other similar agreements to which the Company Subsidiary or any of its Subsidiaries are party); or
(ix) is a settlement or similar agreement with any Governmental Authority or order or consent of a Governmental Authority to which the Company or 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 4.19 of the Company Disclosure Schedule and any contract of the Company or any of its Subsidiaries that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of businessany Company Plan); and
(x) any Contract providing for any change of control or similar payments to , a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a “Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract”).
Appears in 2 contracts
Sources: Merger Agreement (Time Warner Cable Inc.), Merger Agreement (Charter Communications, Inc. /Mo/)
Material Contracts. (a) Except for Schedule 3.11, Part (ia) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company)lists all agreements, (ii) contracts, arrangements or understandings and commitments (collectively, “Material Contracts”) to which the Company or any Company Subsidiary is a party as of and which are currently in effect and constitute the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byfollowing:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actall partnership, joint venture or limited liability company contract arrangements or agreements;
(ii) any Contract relating all material license agreements or agreements in respect of similar rights granted or held, except for licenses with respect to any credit(A) pre-packaged software applications, loan or facility arrangement, guarantee (B) rights to display or Indebtedness (whether use the marks or not incurred, assumed, guaranteed or secured by any asset names of third parties pursuant to agreements with the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryCompany’s suppliers;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, all contracts or other agreement involving a sharing of profits, losses, costs or liabilities by documents that substantially limit the Company or any Company Subsidiary with any Third Party, in each case that is material to the business freedom of the Company and the Company Subsidiaries taken as a wholeto compete in any line of business or with any Person or in any geographic area;
(iv) all Contracts relating to the purchase or sale of any Shares agreements or other securities documents of the Company in respect of borrowed money, including financial instruments of indenture or any Company Subsidiary that has a fair market value or purchase price security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of more than US$1,000,000 under which there are material rights or obligations outstandingcredit;
(v) any Contract contract that limits, requires a consent to or purports otherwise contains a provision relating to limit, the ability a “change of the Company or any Company Subsidiary to compete control,” in any material line of business or connection with any person or entity or in any geographic area or during any period of timethis Agreement;
(vi) any Contract prohibiting the payment of dividends contract with any officer, director, or distributions in respect of the capital stock shareholder of the Company (each, a “Related Party”) or any contract with any family member or Affiliate of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarya Related Party;
(vii) any Contract contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, indemnification to or from the Company or any Company Subsidiary, by or Person with respect to liabilities relating to any Third Party;current or former business of the Company; and
(viii) any Contract providing for the acquisition from another person or disposition to another personall contracts, directly or indirectly (by merger, license or otherwise), of assets or capital stock agreements or other equity interests documents of another person for aggregate consideration under such Contract the Company in respect of property or assets (whether real or series of related Contractspersonal, tangible or intangible) in which the Company holds a leasehold interest with annual payments in excess of US$5,000,000;
Twenty Five Thousand United States Dollars (ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business$25,000); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract set forth on Schedule 3.11, Part (a) is a valid and binding on agreement of the Company, enforceable in accordance with its terms against the Company or a Company Subsidiary and, to the Knowledge of the Company, the other contracting party (subject to the Bankruptcy and Equity Exception), and is in full force and effect, except where the failure of any Material Contract to be valid, binding, enforceable and in full force and effect, subject individually or in the aggregate, would not reasonably be expected to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, be material to the knowledge Company. Neither the Company, nor to the Knowledge of the Company, no any other party thereto, is in material breach or violation of, or default under, under the terms of any Material Contract; , and the Company has made available to the Parent a copy of each Material Contract.
(iiic) Except as set forth on Schedule 3.11, Part (b), no consent, approval, waiver or other action by any Person under any Material Contract listed on Schedule 3.11, Part (a) is required or necessary for, or as a result of, the execution, delivery and performance by the Company of this Agreement or any other Transaction Document to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby.
(d) The License & Supply Agreement between the Company and Daewoong, dated as of September 30, 2013 (the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge “Daewoong Agreement”) is a valid and binding agreement of the Company, no fact or event exists that could give rise enforceable in accordance with its terms against the Company and Daewoong (subject to any claim of material the Bankruptcy and Equity Exception), and is in full force and effect. Neither the Company nor Daewoong is in default under the terms of the Daewoong Agreement. Except as listed on Schedule 3.11(d), no consent, approval, waiver or other action by any Material Contract; Person under the Daewoong Agreement is required or necessary for, or as a result of, the execution, delivery and (iv) performance by the Company has not received, as of this Agreement or any other Transaction Document to which the Company is a party or the consummation by the Company of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contracttransactions contemplated hereby or thereby.
Appears in 2 contracts
Sources: Contribution Agreement (Evolus, Inc.), Contribution Agreement (Evolus, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Letter, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to to, or bound by:, any of the following (each, a “Company Material Contract”):
(i) any Contract that is required to be filed by the Company pursuant to a “material contract” (as such term is defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange Act);
(ii) any Contract relating to any credit, loan Indebtedness for money borrowed or facility arrangement, guarantee or Indebtedness a financial guaranty (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryits Subsidiaries) in excess of $5,000,000;
(iii) any joint venture Contractventure, strategic cooperation partnership or partnership arrangements, limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such agreements or arrangements solely between or among the Company and/or its wholly-owned Subsidiaries;
(iv) any collective bargaining agreement involving or other material Contract to or with any labor union or other employee representative of a sharing group of profitsemployees;
(v) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act, losses, costs other than any such Contract solely between or liabilities by among the Company and/or its wholly owned Subsidiaries;
(vi) any Contract that (A) limits or restricts the Company or any Company Subsidiary of its Subsidiaries (or would, from and after the Effective Time, limit or restrict Parent or any of its Affiliates) from competing in any line of business or with any Third PartyPerson or competing or operating in any market or geographic area, (B) contains exclusivity provision obligations binding on the Company or (C) grants any “most favored nation” or similar right in favor of any third party, and, in the case of each case of clauses (A) through (C), that is material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(ivvii) all Contracts relating any Contract that is an acquisition agreement or divestiture agreement pursuant to which, (A) the purchase Company reasonably expects that it will be required to pay total consideration (including assumption of debt) after the date of this Agreement in excess of $5,000,000, or sale of (B) any Shares or other securities Person will have the right to acquire any assets of the Company or any Company Subsidiary that has of its Subsidiaries after the date of this Agreement (other than in the ordinary course of business) with a fair market value or purchase price in excess of more than US$1,000,000 under which there are material rights or obligations outstanding$5,000,000;
(vviii) any Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $5,000,000 in the aggregate;
(ix) any Contract material to the Company pursuant to which (A) a third party grants the Company or any of its Subsidiaries a right to use any Intellectual Property material to the operation of the businesses conducted by the Company and its Subsidiaries or (B) the Company or any of its Subsidiaries grants to a third party the right to use any Owned Intellectual Property, but excluding, in either case, (x) any Contracts with customers entered into in the ordinary course of business, (y) employee nondisclosure agreements and employee Intellectual Property assignment agreements and (z) Contracts with respect to licenses for the use of “off the shelf” software that is readily commercially available on a “click wrap” or other similar basis for an annual fee of less than $500,000;
(x) any Contract entered into since April 29, 2018 involving any resolution or settlement of any actual or threatened Action involving the Company or any of its Subsidiaries involving (A) a payment in excess of $5,000,000 or (B) any material ongoing requirements or restrictions on the Company or any of its Subsidiaries;
(xi) any material Contract between the Company or any of its Subsidiaries and a Governmental Authority;
(xii) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting restricts the payment of dividends or distributions in respect of the any capital stock or other equity interests of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;; or
(viixiii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could the termination of which would reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements be material to the business of the Company and the Company Subsidiaries, its Subsidiaries taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as As of the date of this Agreement, the Company has made available to Parent true, correct and complete copies of all Company Material Contracts.
(c) Except as set forth or described on Section 3.15(c) of the Company Disclosure Letter, (i) neither the Company nor any of its Subsidiaries nor, to the knowledge Knowledge of the Company, no any other party to a Company Material Contract, is in material breach or violation of, or in material default under, any Company Material Contract; , and no event has occurred that would result in a material breach or violation of, or a material default under, any Company Material Contract or cause or permit the termination, cancellation or acceleration of any material right or obligation under, any provision of any Company Material Contract (iiiin each case, with or without notice, the lapse of time or both) by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto and (ii) each Company Material Contract is valid and binding on each of the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract its Subsidiaries, as applicable, and, to the knowledge Knowledge of the Company, no fact each other party thereto and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or event exists that could give rise hereafter affecting creditors’ rights generally and subject, as to any claim enforceability, to general principles of material default under any Material Contract; equity (regardless of whether enforcement is sought in a proceeding at equity or law), and (iv) is in full force and effect with respect to each of the Company has not receivedand its Subsidiaries, as applicable and, to the Knowledge of the date Company, each other party thereto, in the case of this Agreementeach of the foregoing, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries has received written notice in writing from any person other party to a Company Material Contract that such person other party intends to terminate terminate, not renew, or renegotiate in any material respects the terms of any such Company Material ContractContract (except in accordance with the terms thereof).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Barnes & Noble Inc), Merger Agreement (Barnes & Noble Inc)
Material Contracts. (a) Except for (iSection 3.21(a) this Agreement (of the Company Letter contains a true, complete and correct list of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) by which any property or asset of the Company Disclosure Letter (such Contracts collectivelyor any of its Subsidiaries is bound, the “Material Contracts”), in each case as of the date of this Agreement, none other than Company Plans listed on Section 3.18(a) of the Company or any Company Subsidiary is a party to or bound by:Letter (collectively, the “Material Contracts”):
(i) any (A) each Contract that is required limits the freedom of the Company, any of its Subsidiaries or any of its Affiliates to be filed by 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 in any material respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of products and services, in each case, in any geographic area or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company pursuant to Item 15 of Form 10-K under and its Subsidiaries) after the Exchange ActAcceptance Time;
(ii) any Contract relating to any crediteach partnership, loan joint venture or facility arrangement, guarantee or Indebtedness limited liability company agreement (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness such agreement solely between or among any of the Company and any its wholly owned Subsidiaries) or similar Contract that is material to the Company Subsidiaryand its Subsidiaries, taken as a whole;
(iii) any joint venture Contracteach Contract entered into since January 1, strategic cooperation 2014: (A) relating to the disposition or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities 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 Subsidiary with or any Third Partyof its Subsidiaries will acquire or is obligated to acquire any interest or make an investment (other than the Company or any of its Subsidiaries), in each case case, other than such Contracts that is material are immaterial to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(iv) all Contracts relating each Contract with respect to the purchase acquisition or sale disposition of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
Person (v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (whether by merger, license or otherwise)amalgamation, of assets or capital stock consolidation or other equity interests business combination, sale of another person for aggregate consideration under such Contract (assets, sale of shares in the share capital or series of related Contractsother voting securities, tender offer, exchange offer, or similar transaction) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries has (A) material continuing indemnification obligations (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course in connection with the development, sale or licensing of businessCompany Products), or (B) any “earn-out” or similar contingent payment obligations, in each 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 of inventory, raw materials or equipment in the ordinary course;
(v) any and all Contracts required to be listed on (x) Section 3.16(e) or (y) Section 3.16(f) of the Company Letter;
(vi) (A) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(vii) (A) each supply Contract that contains any exclusivity rights (other than customization work for customers relating to Company Products) or “most favored nations” provisions or minimum use, supply or display requirements that is binding on the Company or its Affiliates or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(viii) other than instruments providing for indebtedness that would not, in the aggregate, exceed $50,000,000, each Contract 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 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, taken as a whole, or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(ix) each collective bargaining agreement and each Contract with any labor union, works council or similar organization;
(x) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that materially (x) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (y) 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 $10,000,000 after the date of this Agreement; and
(xxi) each Contract not otherwise described in any Contract providing for any change other subsection of control or similar payments 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 of the SEC) with respect to a third party in excess of US$1,000,000the Company.
(b) A true, correct and complete copy of each Material Contract in effect as of the date of this Agreement has been made available to Buyer or publicly filed with the SEC prior to the date of this Agreement. Except as for matters that would not have or reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid a valid, binding and binding on enforceable obligation of the Company or a Company Subsidiary and in full force and effectone of its Subsidiaries, subject to bankruptcyon the one hand, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact of the other party or event exists that could give rise 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 to date 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 to date, (iii) none of the Company or any claim of its Subsidiaries has received written 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 the giving of notice or both would cause such a default under or material breach under) any Material Contract; Contract and (iv) neither the Company nor any of its Subsidiaries has received any written notice from any other party to any such Material Contract that such party intends to terminate, or not received, as of the date of this Agreementrenew, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Material Contracts. (a) Except for (i) this Agreement (and the Reassignment Agreement, Section 3.14 of the DouYu Disclosure Schedule sets forth a true and complete list of all of the following types of Contracts contemplated to be entered into hereunder by the Company), that currently remain in effect (iix) contracts, arrangements or understandings to which the Company DouYu or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement or which binds or affects their respective properties or assets, and (the “Contracts”y) have not been filed as exhibits with or furnished to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of an exhibit to the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byDouYu SEC Reports:
(i) any Contract that is would be required to be filed or furnished by the Company DouYu pursuant to Item 15 19 and paragraph 4 of the Instructions to Exhibits of Form 1020-K F under the Exchange Act;
(ii) any Contract relating to any creditgranting a right of first refusal, loan first offer or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryfirst negotiation;
(iii) any Contract relating to (A) the formation, creation, operation, management or control of a partnership, joint venture Contractventure, limited liability company or similar arrangement, (B) strategic cooperation or partnership arrangements, or (C) other agreement similar agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Partyliabilities, in each case case, more than RMB20,000,000, by DouYu or any of its Subsidiaries;
(iv) any Contract for the acquisition, sale or lease (including leases in connection with financing transactions) of material properties or assets of DouYu (by merger, purchase or sale of assets or stock or otherwise);
(v) any Contract with any Governmental Entity;
(vi) any Contract granting or evidencing a Lien on any material properties or assets of DouYu or any of its Subsidiaries, other than a Permitted Lien;
(vii) any Contract involving the capital expenditure by DouYu or its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, in each case, more than RMB20,000,000;
(viii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary 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), or investment in, any Person, in each case, more than RMB20,000,000, other than a wholly-owned Subsidiary of DouYu or any Contract relating to the making of any such loan, advance or investment that is material to the business financial status of the Company and the Company Subsidiaries taken as a wholeDouYu;
(ivix) all Contracts relating any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of DouYu or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(x) any Contract that contains a put, call or similar right pursuant to which DouYu or any of its Subsidiaries could be required to purchase or sale sell, as applicable, any equity interests or assets of any Shares or other securities of the Company or any Company Subsidiary Person that has have a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingRMB20,000,000;
(vxi) any Contracts involving any resolution or settlement of any actual or threatened material litigation, arbitration, claim or other dispute, more than RMB5,000,000;
(xii) any Contract (other than Contracts granting DouYu RSU Awards) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the transactions contemplated by this Agreement, including the Merger;
(xiii) any Contract that limits, or purports contains restrictions with respect to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(viA) any Contract prohibiting the payment of dividends or distributions in any distribution with respect to equity interests of the capital stock of the Company DouYu or any of its wholly owned Company Subsidiaries, prohibits the (B) pledging of the share capital stock of the Company DouYu or any wholly owned Company Subsidiary of its Subsidiaries or prohibits the (C) issuance of any guaranty by the Company DouYu or any wholly owned Company Subsidiaryof its Subsidiaries;
(viixiv) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partymaterial DouYu IP Agreements with an aggregate contract value exceeding RMB20,000,000;
(viiixv) Contracts with top twenty streamers and top twenty talent agencies, in each case, in terms of contract value; or
(xvi) any Contract providing for the acquisition from another person other Contract, a breach or disposition to another person, directly or indirectly (by merger, license or otherwise), termination of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not could reasonably be expected to have a Company DouYu Material Adverse Effect. Each Contract of the type described in this Section 3.14(a), (i) together with any Contract that has been filed or furnished by DouYu pursuant to Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act, is referred to herein as a “DouYu Material Contract”. A true and complete copy of each DouYu Material Contract is in effect as of the date hereof has been made available to Huya (including, where applicable, pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(b) Each DouYu Material Contract constitutes the valid and legally binding on the Company obligation of DouYu or a Company Subsidiary its applicable Subsidiary, enforceable in accordance with its terms and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium Bankruptcy and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, Equity Exception. There is no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such DouYu Material Contract andeither by DouYu or, to DouYu’s knowledge, by any other party thereto, and no event has occurred that with the knowledge lapse of time or the Companygiving of notice or both would constitute a default thereunder by DouYu or, no fact or event exists that could give rise to DouYu’s knowledge, any other party. No party to any such DouYu Material Contract has given notice to DouYu of or made a claim of against DouYu with respect to any material breach or default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractthereunder.
Appears in 2 contracts
Sources: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
Material Contracts. (a) Except for (iSection 3.22(a) this Agreement (of the Company Letter contains a true, complete and correct list of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) by which any property or asset of the Company Disclosure Letter (such Contracts collectivelyor any of its Subsidiaries is bound, the “Material Contracts”), in each case as of the date of this Agreement, none 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 may in the future obligate the Company or any Company Subsidiary is a party of its Subsidiaries to make any severance, termination or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating similar payment to any credit, loan current or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock former legal representative of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(viiB) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries may be obligated to make any bonus or similar payment to any current or former Company Service Provider in connection with the consummation of the transactions contemplated by this Agreement, or (C) that 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 licenses 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 Intellectual Property respect of any Company Securities;
(v) any Contract pursuant to which the Company or licenses out Intellectual Property owned any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries or any other material contingent payment obligations, including any milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case that is not terminable by the Company or such Company Subsidiary its Subsidiaries without penalty without more than thirty (30) days’ notice;
(vi) each Contract that limits the freedom of the Company, any of its Subsidiaries or Company 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 license agreements any such agreement solely between or among the 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 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 (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 “earn-out” or similar contingent payment obligations, in each 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 on standard terms and hardware and customer Contracts for the sale of Company Products to distributors or nonend-exclusive licenses granted users of such Company Products entered into 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) other than instruments providing for indebtedness that would not, in the aggregate, exceed $1,000,000, each Contract 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 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
(xxviii) each Contract not otherwise described in any Contract providing for any change other subsection of control or similar payments 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 a third party in excess of US$1,000,000the 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 as for matters that would not not, individually or in the aggregate, be or reasonably be expected to have be, material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole, (i) each Material Contract is valid a valid, binding and binding on enforceable obligation of the Company or a Company Subsidiary and in full force and effectone of its Subsidiaries, subject to bankruptcyon the one hand, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementand, to the knowledge of the Company, no 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 material breach or violation offull force and effect, or default under, any Material Contract; (iiiii) the Company and the Company each of its Subsidiaries have not received any written claim of material default has performed all obligations required to be performed by it under any such each Material Contract and, to the knowledge of the Company, no fact 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 event exists that could give rise violated in any material respect any provision of, or taken or failed to take any claim 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 the giving of notice or both would cause such a default or material breach under) any Material Contract; Contract and (iv) neither the Company nor any of its Subsidiaries has not receivedreceived any written or, as to the knowledge of the date of this AgreementCompany, oral notice from any other party to any such Material Contract that such party intends to terminate, or not renew, any notice such Material Contract or to adjust the fee schedule under such Material Contract in writing from any person that such person intends to terminate any Material Contractmaterial respects.
Appears in 2 contracts
Sources: Purchase Agreement (BioNTech SE), Purchase Agreement (CureVac N.V.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.20(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)sets forth, as of the date of this Agreement, none a correct and complete list of each of the following types of Contracts to which the Company, any Company 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 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 Company 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, and, in the case of each of clauses (A) through (D), 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 January 1, 2016 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 Subsidiary or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $5 million in the aggregate;
(vii) any Contract 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 network affiliation Contract (or similar Contract) with ABC, CBS, Fox, NBC, CW or MyNetworkTV;
(ix) any Contract relating to cable or 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 September 2018 with respect to either (A) the Company’s WGN America cable service or (B) at least one Company Station;
(x) any Contract that is a party to or bound by:Sharing Agreement and any related option agreement (other than those among the Company and its Subsidiaries);
(ixi) any Contract that is a channel sharing agreement with a third party or parties with respect to the sharing of spectrum for the operation of two (2) or more separately owned television stations;
(xii) any Contract governing a Company Related Party Transaction;
(xiii) any material Contract with a Governmental Authority (other than as disclosed on Section 3.12 of the 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 its Subsidiary for the employment of any executive officer or 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 sold or traded commercial air time in consideration for property or services with a value in excess of $500,000 in lieu of or in addition to cash;
(xvii) each Contract that is required to be filed by the Company as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange Securities Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(xxviii) any Contract providing not otherwise disclosed in Section 3.20 of the Company Disclosure Letter (other than those for any change Program Rights) under which it was reasonably expected that the Company and its Subsidiaries would make annual payments of control $3 million or similar payments more during a calendar year, except for those Contracts that can be cancelled by the Company 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 third party in excess of US$1,000,000“Company Material Contract”.
(b) Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effecteffect and, to the Knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms, subject to bankruptcythe Enforceability Exceptions. Except for breaches, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to violations or affecting creditors’ rightsdefaults which have not had, and would not reasonably be expected to general equity principles; (ii) as 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 to a Company Material Contract, is in violation of or in default under any provision of such Company Material Contract. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Parent prior to the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Nexstar Media Group, Inc.), Agreement and Plan of Merger (Tribune Media Co)
Material Contracts. (a) Except for Schedules 2.15(a)(i) through (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(axx) of the Company Disclosure Letter set forth a list of each of the following Contracts to which the Company is a party, in each case identified by the applicable sub-section (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required providing for payments by or to be filed by Seller in the Company pursuant to Item 15 period since January 1, 2008 in an aggregate amount of Form 10-K under the Exchange Act$10,000 or more;
(ii) any Contract relating to with any creditadvertiser or agency for the purchase, loan licensing, or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset sale of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyProducts or other advertising or services, including ad insertion orders, click through agreements, or other than any Indebtedness between or among any of the Company and any Company Subsidiarypurchasing arrangements;
(iii) any joint venture ContractContract with any publisher with respect to the publication or display of Company Products or other advertising, strategic cooperation and any Contract granting any third party the right to market or partnership arrangementssell any Company Products, or other agreement involving a sharing relating to the advertising or promotion of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and or pursuant to which any third parties advertise on any websites operated by the Company Subsidiaries taken as a wholeCompany;
(iv) (1) any joint venture Contract, (2) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons (other than Contracts with Publishers identified in response to Section 2.15(a)(ii) or (3) any Contract that involves the payment of royalties to any other Person;
(v) any Contract for or relating to the employment or service of any director or officer or any other type of Contract with any of its directors or officers, as the case may be;
(vi) any agreement pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company Products or Company Intellectual Property, or containing any non-competition covenants or other restrictions relating to the Company Products or Company Intellectual Property; or that limits the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the Company Products or Company Intellectual Property, or to make use of any Company Intellectual Property Rights;
(vii) other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $1,000 or less, all licenses, sublicenses and other Contracts to which Seller is a party and pursuant to which Seller acquired or is authorized to use any Third Party Intellectual Property Rights used in the development, marketing or licensing of the Seller Products;
(viii) any license, sublicense or other Contract to which Seller is a party and pursuant to which any Person is authorized to use any Company Intellectual Property;
(ix) any license, sublicense or other Contract pursuant to which Company has agreed to any restriction on the right of Company to use or enforce any Company Owned Intellectual Property Rights or pursuant to which Company agrees to encumber, transfer or sell rights in or with respect to any Company Owned Intellectual Property Rights;
(x) any Contracts relating to the purchase membership of, or sale participation by, the Company in, or the affiliation of the Company with, any industry standards group or association;
(xi) any Contract providing for the development of any Shares of the any software, technology or Intellectual Property Rights, independently or jointly, either by or for Company (other than employee invention assignment agreements and consulting agreements with Authors on Company’s standard form of agreement, copies of which have been made available to Acquirer’s counsel);
(xii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by Seller in the ordinary course of business consistent with past practice;
(xiii) any Contract to license or authorize any third party to manufacture or reproduce any of the Company Products or Company Intellectual Property;
(xiv) any agreement containing any support, maintenance or service obligation or cost on the part of Company;
(xv) any settlement agreement;
(xvi) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Merger or other transactions contemplated hereunder, either alone or in combination with any other event;
(xvii) any Contract pursuant to which the Company agrees to provide any Intellectual Property or other indemnity that is not capped at the fees paid or payable to the Company;
(xviii) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights disclosed on Schedule 2.2(a) of the Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingDisclosure Letter;
(vxix) any Contract that limits, or purports to limit, the ability of the Company with any labor union or any Company Subsidiary to compete in any material line of business collective bargaining agreement or similar contract with any person or entity or in any geographic area or during any period of timeits employees;
(vixx) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the with any Governmental Entity, any Company Authorization, or any of its wholly owned Company SubsidiariesContract with a government prime contractor, prohibits the pledging of the capital stock of the Company or higher-tier government subcontractor, including any wholly owned Company Subsidiary indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or prohibits the issuance of any guaranty by the Company task or any wholly owned Company Subsidiary;
delivery order (vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwiseeach a “Government Contract”), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (iUnless otherwise provided in Section 2.15(b) each Material Contract is valid and binding on of the Company or a Disclosure Letter, all Material Contracts are in written form. The Company Subsidiary has performed all of the obligations required to be performed by it and, subject to compliance by third parties, is entitled to all benefits under, and is not alleged to be in default in respect of, any Material Contract. Each of the Material Contracts is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, only to the knowledge effect, if any, of applicable bankruptcy and other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to the Company or to the Company’s knowledge, no with respect to any other party is in material breach contracting party, which, with the giving of notice, the lapse of time or violation ofthe happening of any other event or condition, or would reasonably be expected to (i) become a default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and Contract or (ivii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. The Company has not received, as of the date of this Agreement, received any notice in writing from or other communication regarding any person that such person intends actual or possible violation or breach of, default under, or intention to terminate cancel or modify any Material Contract. The Company has no Liability for renegotiation of Government Contracts. Correct and complete copies of all Material Contracts have been made available to Acquirer prior to the Agreement Date.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Exponential Interactive, Inc.)
Material Contracts. (a) Except for (iSchedule 5.14(a) this Agreement (and sets forth, all of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary Purchased Entity is a party as or by which any of the date of this Agreement them or their respective Purchased Entity Assets are bound (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) Contracts with any Contract that is required to be filed by the Company pursuant to Item 15 Seller or Affiliate thereof or any current or former officer, director, stockholder or Affiliate of Form 10-K under the Exchange Actany Purchased Entity (other than a Purchased Entity);
(ii) Contracts for the sale of any Contract relating material assets of any Purchased Entity other than in the Ordinary Course of Business or for the grant to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by Person of any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among preferential rights to purchase any of the Company and any Company Subsidiaryits material assets;
(iii) any Contracts for joint venture Contractventures, strategic cooperation or partnership alliances, partnerships, licensing arrangements, or other agreement involving a sharing of profits, losses, costs profits or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholeproprietary information;
(iv) all Contracts relating to the purchase or sale containing covenants of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary Purchased Entity not to compete in any material line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or entity covenants of any other Person not to compete with any Purchased Entity in any line of business or in any geographic geographical area or during not to solicit or hire any period person with respect to employment;
(v) Contracts relating to the acquisition (by merger, purchase of timestock or assets or otherwise) by any Purchased Entity of any operating business or material assets or the capital stock of any other Person;
(vi) Contracts relating to the incurrence, assumption or guarantee of any Contract prohibiting the payment of dividends Indebtedness or distributions in respect imposing a Lien on any of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance material assets of any guaranty by the Company or any wholly owned Company SubsidiaryPurchased Entity;
(vii) any Contract all Contracts providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third PartyPurchased Entity in excess of $50,000 in any fiscal year or $200,000 in the aggregate during the term thereof;
(viii) all Contracts obligating any Contract providing Purchased Entity to provide or obtain products or services for the acquisition from another person a period of one year or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000more;
(ix) Contracts for the employment of any Contract that are license agreements material to the business of the Company and the Company Subsidiariesindividual on a full-time, taken as a whole, pursuant to which the Company part-time or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)consulting basis; and
(x) any Contract providing for any change development agreements setting forth duties and obligations relating to the Properties, public disclosure reports issued by the Arizona Department of control or similar payments to a third party in excess Real Estate, and storm water plans filed with the Arizona Department of US$1,000,000Environmental Quality.
(b) Except as would not reasonably be expected to have a Company Each of the Material Adverse Effect, (i) each Material Contract Contracts is valid and binding on the Company or a Company Subsidiary and in full force and effecteffect and is the legal, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium valid and similar Laws binding obligation of general applicability relating to or affecting creditors’ rightsany Purchased Entity which is party thereto, and to general equity principles; (ii) as of the date other parties thereto enforceable against each of this Agreement, to the knowledge of the Company, no other party them in accordance with its terms. No Purchased Entity is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) , nor, to the Company Knowledge of Sellers, is any other party to any Material Contract in breach of or in default thereunder, and, to the Knowledge of Sellers, no event has not received, as occurred that with the lapse of time or the giving of notice or both would constitute a breach or default of any Purchased Entity or any other party thereunder. Any payments due under each Material Contract have been timely made by the applicable Purchased Entity. No party to any of the date Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of this Agreement, any notice in writing from any person that such person intends significant dispute with respect to terminate any Material Contract. Sellers have delivered or made available to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto and assignments thereof, if any.
Appears in 2 contracts
Sources: Master Transaction Agreement (Avatar Holdings Inc), Master Transaction Agreement (Avatar Holdings Inc)
Material Contracts. (a) Except for (iSchedule 4.15(a) this Agreement (sets forth a complete and correct list of each of the following types of Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to or by which the Company SEC Reports is bound and that have not been fully performed or have not otherwise expired or been terminated (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract Contracts that is required involve aggregate annual payments by or to be filed by the Company pursuant to Item 15 of Form 10-K under more than $250,000 (other than purchase orders entered into in the Exchange ActOrdinary Course of Business and other than employment Contracts disclosed on Schedule 4.16(a));
(ii) Contracts that relate to or evidence Indebtedness or pursuant to which a Lien has been placed on any Contract relating to any credit, loan material asset or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset property of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryCompany;
(iii) Contracts that contain any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party(A) covenant limiting, in each case that is any material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limitrespect, the ability of the Company or any Company Subsidiary to compete engage in any material line of business or compete with any person Person or entity (B) obligation on the part of the Company to indemnify any Person or (C) guaranty by the Company of the obligations of any other Person;
(iv) Contracts that create or relate to a partnership or joint venture to which the Company is a party, or pursuant to which the Company has any ownership interest in any geographic area other Person;
(v) Contracts for (A) the disposition of the capital stock of a Seller or during the Subsidiary or the disposition of any period material Transferred Asset (other than inventory disposed of timein the Ordinary Course of Business), (B) the acquisition of any capital stock or other equity interest in, or material assets or business of, any other Person, in each case, other than in the Ordinary Course of Business, or (C) any merger, recapitalization, redemption, reorganization or other similar Contract;
(vi) Contracts relating to the employment or compensation of any Contract prohibiting the payment of dividends or distributions in respect of the capital stock employee of the Company or any of its wholly owned (other than Company Subsidiaries, prohibits Benefit Plans that are disclosed on Schedule 4.16(a)) that are not terminable at-will without liability to the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company SubsidiaryCompany;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from Contracts under which the Company has, directly or indirectly, made any Company Subsidiaryadvance, by loan or extension of credit to any Third PartyPerson;
(viii) any Contract providing Contracts for capital expenditures or the acquisition or construction of fixed assets for the acquisition from another person benefit and use of the Company or disposition to another personthe Subsidiary, directly or indirectly (by merger, license or otherwise), the performance of assets or capital stock or other equity interests of another person for aggregate which involves consideration under such Contract (or series of related Contracts) in excess of US$5,000,000$150,000 annually or $300,000 in the aggregate;
(ix) any Contract that are license agreements material to concerning Licensed Intellectual Property involving consideration in excess of $100,000 per year;
(x) Contracts for the business purchase or sale of real property;
(xi) any Contract between the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any Affiliate of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries Company;
(other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)xii) any Contract with a Governmental Body; and
(xxiii) any Contract providing for commitment to enter into any change agreement of control or similar payments to a third party the type described in excess subsections (i) through (xii) of US$1,000,000this Section 4.15.
(b) The Company has made available to Purchaser true and complete copies of all of the Material Contracts. Except as would not reasonably be expected to have a Company set forth on Schedule 4.15(b), all of the Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and Contracts are in full force and effecteffect and are the legal, valid and binding obligation of the Company and, to the Knowledge of the Company, the other parties thereto, enforceable against the Company and, to the Knowledge of the Company, the other parties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or laws affecting creditors’ rightsrights and remedies generally, and subject, as to enforceability, to general principles of equity principles; (ii) regardless of whether enforcement is sought in a proceeding at law or in equity). Except as of set forth on Schedule 4.15(b), neither the date of this AgreementCompany nor, to the knowledge Knowledge of the Company, no other party any counterparty (with or without notice or lapse of time, or both) is in material breach or violation of, or default under, in any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default respect under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Perrigo Co)
Material Contracts. (a) Except for (iSchedule 5.8(a) this Agreement (and sets forth a list of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the (x) any Transferred Company or any Company Subsidiary is a party as of the date of this Agreement or (the “Contracts”y) filed as exhibits a Seller is a party and which relates to the Company SEC Reports or Mediasite Business (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “"Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:"):
(i) any Contract that is required to be filed by with a Key Customer (excluding purchase orders or work orders issued in the Company pursuant to Item 15 ordinary course of Form 10-K under the Exchange Actbusiness);
(ii) any Contract relating to any credit, loan with a Key Supplier (excluding purchase orders or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset work orders issued in the ordinary course of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiarybusiness);
(iii) any joint venture Contract, strategic cooperation Contract with the Key Manufacturer (excluding purchase orders or partnership arrangements, or other agreement involving a sharing work orders issued in the ordinary course of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholebusiness);
(iv) all Contracts relating any Contract which reflects a commitment by a Mediasite Company to pay, or pursuant to which a Mediasite Company actually paid in the purchase or sale preceding 12-month period, an amount in excess of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding$50,000;
(v) any Contract that limitswhich reflects a commitment by a third party to pay to a Mediasite Company, or purports pursuant to limitwhich a Mediasite Company actually was paid in the preceding 12-month period, the ability an amount in excess of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time$50,000;
(vi) any Contract prohibiting the employment, severance or consulting agreement with any Employee which required an annual payment of dividends or distributions cash compensation to such person in respect 2022 in excess of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary$150,000;
(vii) any Contract providing which provides for any indemnificationa partnership, earn-out, installment a joint venture or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment involving the sharing of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partyprofits;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), sale of any of the assets or capital stock or of any Mediasite Company other equity interests than in the ordinary course of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000business;
(ix) any Contract relating to indebtedness or the granting by any Mediasite Company of an Encumbrance on any of its assets relating to the Mediasite Business;
(x) any Contract with any Governmental Body;
(xi) any Contract with another Person materially limiting or restricting the ability of any Mediasite Company to enter into any market or engage in any line of business;
(xii) any Contract pursuant to which any Mediasite Company licenses Intellectual Property from a third party that are license agreements is material to the business Mediasite Business, other than software that is generally available to the public through retail stores or commercial distribution channels and licensed to a Seller for a license fee of the Company and the Company Subsidiaries, taken as a whole, less than $50,000 for each such license;
(xiii) any Contract pursuant to which the any Mediasite Company or any licenses Mediasite Intellectual Property to a third party, other than (x) nonexclusive licenses granted to customers of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted Mediasite Business in the ordinary course of business), (y) licenses that arise as a matter of law by implication as a result of sales of products and services by the Mediasite Business, and (z) sales or marketing Contracts that include an incidental license to use the trademarks of any Mediasite Company for the purposes of advertising and selling products or services of the Mediasite Business; and
(xxiv) any Contract providing for which is a material binding commitment or agreement to enter into any change of control or similar payments to a third party in excess the foregoing types of US$1,000,000agreements.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effectset forth in Schedule 5.8(b), (i) each all Material Contract is Contracts are valid and binding on the Company or agreements of a Company Subsidiary and Mediasite Company, (ii) all Material Contracts are in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar Laws no material default or breach exists in respect thereof on the part of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementany Mediasite Company or, to the knowledge Knowledge of Seller, the Companyother parties thereto, and no other party is in event has occurred that, after the giving of notice or the lapse of time or both, would constitute such a material breach default or violation ofbreach, or default under, any Material Contract; (iii) no Material Contract contains any penalty provisions, minimum purchase commitments, refund rights or similar provisions, (iv) no Mediasite Company has received notice of termination of any Material Contract or notice of any customer intending to terminate its relationship with a Mediasite Company, (v) no Material Contract either requires a consent or can be terminated in the event of any change in the underlying ownership or control of a Mediasite Company or would be materially affected by such a change, and (vi) no Material Contract requires any Employee of a Mediasite Company to attend a customer’s premises.
(c) Set forth in Schedule 5.8(c) is a true and complete listing of all Open Customer Contracts under which the Mediasite Companies have unfulfilled software development set-up obligations, a description of such outstanding work to be completed, and the Company Subsidiaries have not received any written claim amount of material default under any time in hours required to complete such Material Contract andoutstanding work and which reflects a total contractual amount in excess of $50,000. For greater certainty, each of the representations in Section 5.8(b) shall apply in the same manner, mutatis mutandis, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractOpen Customer Contracts.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Sonic Foundry Inc), Stock and Asset Purchase Agreement (Sonic Foundry Inc)
Material Contracts. (a) Except All Contracts, including amendments thereto, required to be filed as an exhibit to any Company SEC Documents filed on or after January 1, 2017 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to Parent.
(b) Other than the Contracts described in Section 3.8(a), Part 3.8(b) of the Company Disclosure Schedule sets forth a complete list, except for this Agreement, in each case as of the date hereof, of each Contract (or the accurate description of principal terms on case of oral Contracts), including all amendments, supplements and side letters thereto that modify each such Contract in any material respect, to which any of the Acquired Companies is a party to or by which it is bound or to which any of their respective assets is subject (other than any of the foregoing solely between the Company and any of the wholly-owned Acquired Companies or solely between any wholly-owned Acquired Companies) that:
(i) this Agreement is a “material contract” (and as such term is defined in Item 601(b)(10) of Regulation S-K of the Contracts contemplated to be entered into hereunder by the CompanyExchange Act), ;
(ii) contractsis a (A) limited liability company agreement, arrangements partnership agreement or understandings joint venture agreement or similar Contract or (B) Company Management Agreement Document, Company Franchise Agreement Document, Material Company Space Lease, Company Ground Lease or Material Company Lease;
(iii) contains covenants of any Acquired Company purporting to limit, in any material respect, either the type of business in which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company its Subsidiaries or any Company Subsidiary is a party to of their affiliates may engage or bound by:
(i) the geographic area in which any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallythem may so engage, other than any Indebtedness between or among any of the Company exclusive lease provisions, non-compete provisions and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities similar leasing restrictions entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice, contained in the Material Company Subsidiary with any Third Party, Leases or contained in each case that is material to the business of other recorded documents by which real property was conveyed by the Company and the Company Subsidiaries taken as a wholeto any user;
(iv) all Contracts relating evidences Indebtedness for borrowed money in excess of $5,000,000 of any of the Acquired Companies, whether unsecured or secured;
(v) provides for the pending purchase or sale, option to the purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease, by merger, purchase or sale of assets or stock or otherwise, any Shares real property (including any Company Owned Real Property or any portion thereof) including any Company Prior Sale Agreement;
(vi) other securities than the Operating Partnership Agreement, contains a put, call or similar right pursuant to which any of the Company Acquired Companies could be required to purchase or sell, as applicable, any Company Subsidiary equity interests of any Person or assets that has have a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary$5,000,000;
(vii) (x) requires any Contract providing for of the Acquired Companies to provide any indemnificationfunds to or make any investment in (in each case, earn-outin the form of a loan, installment capital contribution or similar transaction) any other Acquired Company or other contingent obligations Person in excess of $2,000,000 or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to (y) evidences a loan (whether secured or from the Company or any Company Subsidiary, by or unsecured) made to any Third Partyother Person in excess of $2,000,000;
(viii) relates to the settlement (or proposed settlement) of any Contract providing pending or threatened Legal Proceeding, other than any settlement that provides solely for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), payment of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000less than $1,000,000;
(ix) any Contract that are license agreements material would be required to the business of the Company and the Company Subsidiaries, taken as a whole, be disclosed pursuant to which Item 404 of Regulation S-K promulgated under the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)Securities Act; andor
(x) except to the extent such Contract is described in the clauses above, is a Company Benefit Plan or is terminable by the Acquired Companies within 180 days, calls for (A) aggregate payments by, or other consideration from, any of the Acquired Companies of more than $7,500,000 over the remaining term of such Contract providing for or (B) annual aggregate payments by, or other consideration from, any change of control or similar payments to a third party in excess the Acquired Companies of US$1,000,000more than $5,000,000.
(bc) Except Each Contract, arrangement, commitment or understanding of the type described above in Section 3.8(b), whether or not set forth in Part 3.8(b) of the Company Disclosure Schedule, is referred to herein as would not reasonably be expected to have a “Company Material Adverse EffectContract”. The Company has made available to Parent true and complete copies of all Company Material Contracts as of the date hereof, (i) each including amendments and supplements thereto. As of the date hereof, all of the Company Material Contract is Contracts are valid and binding on the Company or a Company Subsidiary Acquired Companies, as the case may be, and, to the Knowledge of the Company, each other party thereto, as applicable, and in full force and effect, subject to except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or applicable Law affecting creditors’ rightsrights generally and by general principles of equity (the “Bankruptcy and Equity Exception”). No Acquired Company has, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge Knowledge of the Company, no none of the other party is in material breach or violation 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, under the provisions of any Company Material Contract; (iii) , except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract Adverse Effect and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date hereof, no Acquired Company has received written notice of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractof the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)
Material Contracts. (a) Except for (i) this Agreement (Agreement, the Benefit Plans and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) agreements filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Documents, as of the date of this Agreement, none neither Company nor any of the Company or any Company Subsidiary its Subsidiaries is a party to or bound by:
(i) any Contract that "material contract" (as such term is required to be filed by the Company pursuant to defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC);
(ii) any Contract relating to that (A) expressly imposes any credit, loan restriction on the right or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset ability of the Company or any of its Subsidiaries to compete with any other person 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 Company Subsidiary) or any of more than US$2,000,000 for each such Contract individuallyits Subsidiaries in a material manner, other than any Indebtedness between those contained in customary oil and gas leases or among any of the Company and any Company Subsidiarycustomary confidentiality agreements;
(iii) any joint venture Contractmortgage, strategic cooperation or partnership arrangementsnote, debenture, indenture, security agreement, guaranty, pledge or other agreement involving a sharing or instrument evidencing indebtedness for borrowed money or any guarantee of profits, losses, costs or liabilities by the such indebtedness of Company or any Company Subsidiary with of its Subsidiaries in an amount in excess of $100,000, except any Third Party, in each case that is material to the business of the transactions among Company and the Company Subsidiaries taken as a wholeits wholly owned subsidiaries or among Company’s wholly owned Subsidiaries;
(iv) all Contracts relating to any Contract that provides for the purchase acquisition, disposition, license, use, distribution or sale outsourcing of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material assets, services, rights or obligations outstandingproperties with a value, or requiring the payment of an annual amount by Company and its Subsidiaries, in excess of $100,000;
(v) any joint venture, partnership or limited liability company agreement or other similar Contract that limitsrelating to the formation, creation, operation, management or purports to limitcontrol of any joint venture, partnership or limited liability company, other than any such Contract solely between Company and its Subsidiaries or among Company’s Subsidiaries and other than any customary joint operating agreements, unit agreements or participation agreements affecting the ability Oil and Gas Interests of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timeCompany;
(vi) any Contract prohibiting expressly limiting or restricting the payment ability of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company SubsidiariesSubsidiaries to make distributions or declare or pay dividends in respect of their capital stock, prohibits partnership interests, membership interests or other equity interests, as the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarycase may be;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the obligates 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 Oil and Gas Interests of Company Subsidiarynot covered by a joint operating agreement or participation agreement or (B) any loan or capital contribution to, by or to any Third Partyinvestment in Company or one of its wholly owned Subsidiaries;
(viii) any Contract providing for the acquisition from another person sale by Company or disposition any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow Company or such Subsidiary to another person, directly terminate it without penalty on 60 days’ notice or indirectly less or (by merger, license B) contains a "take-or-pay" clause or otherwise), of assets any similar material prepayment or capital stock forward sale arrangement or other equity interests of another person for aggregate consideration under such Contract obligation (excluding "gas balancing" arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or series of related Contracts) in excess of US$5,000,000thereafter receiving full payment therefor;
(ix) any Contract that are license agreements 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 100 Mcf per day (or, in the case of liquids, in excess of 25 barrels of oil equivalent) of Hydrocarbons per day over a period of one month (calculated on a yearly average basis);
(x) any Oil and Gas Lease that contains express provisions (A) establishing bonus obligations in excess of $5,000 that were not satisfied at the time of leasing or signing or (B) providing for a fixed term, even if there is still production in paying quantities;
(xi) any agreement pursuant to which Company or any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $25,000 during the immediately preceding fiscal year or with respect to which Company reasonably expects that it will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $25,000 per year;
(xii) any agreement which 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 business operation of the Company and the Company its Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(xB) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a require Company Material Adverse Effectand its Subsidiaries to make expenditures in excess of $25,000 in the aggregate during the 12-month period following the date hereof;
(xiii) any acquisition Contract that contains "earn out" or other contingent payment obligations, or remaining indemnity or similar obligations (i) each Material Contract is valid other than asset retirement obligations, plugging and binding on abandonment obligations and other reserves of Company set forth in the Company or a Company Subsidiary and in full force and effect, subject Reserve Reports that have been provided to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating Parent prior to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement), that would reasonably be expected to result in payments after the date hereof by Company or any of its Subsidiaries in excess of $50,000; or
(xiv) any material lease or sublease with respect to a Company Leased Real Property. All contracts of the types referred to in clauses (i) through (xiv) above are referred to herein as "Company Material Contracts."
(b) Neither Company nor any Subsidiary of Company is in breach of or default under the terms of any Company Material Contract. To the knowledge of the Company, no other party to any Company Material Contract is in material breach or violation of, of or default under, under the terms of any Company Material Contract; (iii) the . Each Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract is a valid and binding obligation of Company or the Subsidiary of Company that is party thereto and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; each other party thereto, and (iv) the Company has not received, as of the date of this Agreement, any notice is in writing from any person that such person intends to terminate any Material Contractfull force and effect.
Appears in 2 contracts
Sources: Merger Agreement (Stratex Oil & Gas Holdings, Inc.), Merger Agreement (RICHFIELD OIL & GAS Co)
Material Contracts. (a) Except for (i) this the Original Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (and as of the “Contracts”) Closing Date, this Agreement), the Company Benefit Plans, the Company Real Property Leases, the Company Subleases and agreements filed as exhibits to the Company SEC Reports or Documents (iii) as set forth in Section 3.15(a) of including those that are filed with the Company Disclosure Letter (such Contracts collectively, SEC at any time prior to the “Material Contracts”Original Agreement Date and incorporated by reference thereto), as of the date of this AgreementOriginal Agreement Date, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or bound by:
(i) any Contract that “material contract” (as such term is required to be filed by the Company pursuant to defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC);
(ii) any Contract relating with any Top Company Customer or Top Company Vendor pursuant to which material payments are to be made or received by the Company or any credit, loan of its Subsidiaries or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset material obligations of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries will remain outstanding after the Original Agreement Date, other than any Indebtedness between or among any of the Company and any Company Subsidiarywith respect to commercial product Warranties on customary terms;
(iii) any joint venture ContractContract under which the Company or any of its Subsidiaries has continuing indemnification, strategic cooperation earnout or partnership arrangementssimilar obligations to or by any third person which are material to the Company and its Subsidiaries, taken as a whole, other than those entered into on customary terms in connection with the distribution, sale or license of the Company’s products in the Ordinary Course of Business and other than any such Contracts that may be cancelled without liability to the Company or its Subsidiaries upon notice of 90 days or less;
(iv) any Contract concerning the acquisition or divestiture of any entity or any business (or all or substantially all of the assets of any entity or any business), or other agreement involving a sharing any investment in, or acquisition or divestiture of profitsany security of, lossesany entity, costs or liabilities by the Company or any of its Subsidiaries under which the Company Subsidiary with or any Third Partyof its Subsidiaries has any material continuing obligations;
(v) any Contract for capital expenditures involving payments of more than $4,000,000 individually or $8,000,000 in the aggregate, by or on behalf of the Company or any of its Subsidiaries, for which reserves have not already been established in each case that the financial statements of the Company and its Subsidiaries;
(vi) any Contract which is material to the business operations of the Company and its Subsidiaries, taken as a whole, involving a joint venture or strategic alliance or partnership agreement or other sharing of profits or losses with any person;
(vii) any Contract relating to indebtedness for borrowed money in an amount in excess of $5,000,000 individually;
(viii) any Contract with any Top Company Customer or Top Company Vendor containing any, or, to the knowledge of the Company, any other material Contract containing any material, covenants, commitments, or other obligations by the Company or any of its Subsidiaries (A) not to compete with any person in a line of business or activity, (B) not to engage in any line of business or activity in any geographic location in a line of business, activity or geographic location, (C) granting any exclusive rights to any third party, (D) including “take or pay,” “sole source” or “requirements” obligations, (E) granting any “most favored pricing” or similar terms to any third party, or (F) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies, in each case, other than any such Contracts (x) that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 180 days or less, or (y) which are not material to the Company and its Subsidiaries, taken as a whole;
(ivix) all Contracts relating any Contract disclosed or required to the purchase or sale of any Shares or other securities be disclosed on Section 3.20(g) of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingDisclosure Letter;
(vx) any Order or settlement or conciliation agreement entered into since January 1, 2018, other than (A) releases immaterial in nature and amount entered into with former employees or independent contractors of the Company in the Ordinary Course of Business or (B) settlement agreements which would not require the Company to pay consideration in excess of $2,000,000;
(xi) any Contract that limitsevidencing an outstanding loan, advance or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of investment by the Company or any of its wholly owned Company SubsidiariesSubsidiaries to or in, prohibits the pledging of the capital stock of any person (other than the Company or any wholly owned Company other Subsidiary or prohibits of the issuance Company) of any guaranty by more than $5,000,000 in the Company or any wholly owned Company Subsidiaryaggregate (excluding trade receivables and advances to employees for normally incurred business expenses, each arising in the Ordinary Course of Business);
(viixii) each Material Government Contract (excluding any Government Contracts with universities or similar institutions on customary and reasonable terms); and
(xiii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect not described above and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries has paid or received payments in excess of $5,000,000 in the most recent fiscal year, or is obligated to pay or entitled to receive payments in excess of $5,000,000 in the 12-month period following the Original Agreement Date, in each case, other than (A) Contracts solely between the Company Subsidiaries licenses in Intellectual Property and a wholly owned (direct or licenses out Intellectual Property owned by indirect) Subsidiary of the Company or such Company Subsidiary solely between wholly owned (direct or Company indirect) Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of(B) Contracts with customers, suppliers, vendors, or default under, any Material Contract; third-party service providers entered into in the Ordinary Course of Business on reasonable terms or (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.C)
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lumentum Holdings Inc.), Agreement and Plan of Merger (Coherent Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as As of the date of this Agreement, none of the Company Company, any of its subsidiaries or any Company Subsidiary their respective properties or other assets is a party to or bound by:by any Contract (other than Company Plans):
(i) pursuant to which the Company, any Contract that is required to be filed of its subsidiaries or any other party thereto has material continuing obligations, rights or interests and including annual payments by the Company and its subsidiaries of $100,000 or more relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, any product candidate for which the Company or any of its subsidiaries is currently engaged in research or development, including but not limited to: (A) material manufacture or supply services or material Contracts with contract research organizations for clinical trials-related services; (B) material transfer Contracts for pre-clinical products or clinical products of the Company or any of its subsidiaries with commercial, pharmaceutical or biotechnology companies; (C) Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its subsidiaries or income or revenues related to any clinical product candidate of the Company or any of its subsidiaries; and (D) Contracts pursuant to Item 15 of Form 10-K under which the Exchange ActCompany has minimum purchase or “most favored nation” obligations;
(ii) that contains any Contract relating non-compete or exclusivity provision or limits or purports to any creditlimit, loan curtail or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset restrict the ability of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between its subsidiaries (or among any which following the consummation of the Company Merger and any Company Subsidiary;
(iiithe other transactions contemplated hereby would reasonably be expected to limit the ability of the Surviving Corporation) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving in a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case manner that is material to the business of the Company and the Company Subsidiaries its subsidiaries, taken as a whole, as currently conducted (A) to compete in any line of business, in any geographic area or with any Person and (B) to sell to or purchase from any other Person;
(iii) that requires or permits the Company, or any successor to, or acquirer of, the Company, to make any payment to another Person, or requires the consent of another Person, in each case in connection with a change of control of the Company or gives another Person a right to receive or elect to receive a change of control payment;
(iv) all Contracts relating to the purchase that is a joint-venture or sale of any Shares partnership agreement or other securities of the Company similar agreement or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingarrangement;
(v) any Contract that limits, (A) relates to the disposition or purports to limit, the ability of acquisition by the Company or any Company Subsidiary to compete its subsidiaries of a material amount of assets or equity interests in any material line Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or with (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $50,000 or (B) pursuant to which the Company or its subsidiaries will acquire or dispose of any material ownership interest in any other person or entity or in any geographic area or during any period of timeother business enterprise other than the Company’s subsidiaries;
(vi) that is a loan or credit agreement, indenture, note or other Contract or instrument relating to or evidencing Indebtedness for borrowed money (including any guarantee thereto) or any Contract prohibiting the payment pursuant to which Indebtedness for borrowed money may be incurred or guaranteed, including any Contract that is a financial derivatives master agreement or confirmation, or futures account opening agreement and/or brokerage statement, evidencing financial hedging or similar trading activities;
(vii) that is a mortgage, pledge, security agreement, deed of dividends trust, capital lease or distributions in respect of the capital stock similar agreement that creates or grants a Lien on any material property or asset of the Company or any of its wholly owned Company Subsidiariessubsidiaries, prohibits in each case involving annual payments of more than $100,000;
(viii) that is a Collective Bargaining Agreement;
(ix) that is a Contract providing for the pledging issuance or sale of the capital stock any equity securities of the Company or any wholly owned of its subsidiaries;
(x) That is a settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Authority or any other Person that has existing or contingent performance obligations;
(xi) that is a Contract granting a right of first refusal or first negotiation to any third party over any material assets of the Company;
(xii) that is a Contract, including any ancillary or subagreements thereto, with any contract research organization or other agreement, including any ancillary or subagreements thereto, with a third party which is conducting one or more clinical studies on behalf of the Company Subsidiary or prohibits its subsidiaries and is reasonably expected to require payment of more than $50,000 within twelve (12) months prior to or after the issuance date of any guaranty this Agreement;
(xiii) involves the use or license by the Company or its subsidiaries of any wholly owned material Software used by the Company Subsidiaryor its subsidiaries as presently conducted (other than non-customized Software subject to shrink-wrap, click-wrap and off-the-shelf or commercially available Software);
(viixiv) is an IP Agreement of the type set forth in Section 3.15(f) or 3.15(g) of the Company Disclosure Letter or involves the joint development of products or technology with a third party that is material to the Company and its subsidiaries, taken as a whole; or
(xv) that is any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still a “material contract” (as such term is defined in effect Item 601(b)(10) of Regulation S-K of the SEC).
(xvi) All Contracts, arrangements, commitments or understandings described in this Section 3.12(a), together with each Company Real Property Lease, shall be collectively referred to as the “Company Material Contracts.”
(b) Except, in each case, as has not been and could would not reasonably be expected to result be, individually or in payment of more than US$250,000the aggregate, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiariesits subsidiaries, taken as a whole, pursuant as of the date hereof, (i) each of the Company Material Contracts is valid, binding and in full force and effect with respect to the Company and its subsidiaries party thereto and, to the Knowledge of the Company, each other party thereto and enforceable, in all material respects, in accordance with its terms by the Company and its subsidiaries party thereto (subject to the Bankruptcy and Equity Exception); (ii) the Company and each of its subsidiaries has performed all material obligations required to be performed by them under the Company Material Contracts to which they are parties; (iii) to the Knowledge of the Company, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (iv) no party to any Company Material Contract has given the Company or any of its subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract and neither the Company Subsidiaries licenses nor any of its subsidiaries, nor, to the Knowledge of the Company, any other party to any Company Material Contract, has repudiated in Intellectual Property or licenses out Intellectual Property owned by writing any material provision thereof. Neither the Company nor any of its subsidiaries has knowledge of, or such has received written notice of, any violation or default under any Company Subsidiary Material Contract or Company Subsidiaries (any other than license agreements Contract to which it is a party or by which it or any of its material properties or assets is bound, except for commercially available software on standard terms violations or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as defaults that have not been and would not reasonably be expected to have a Company Material Adverse Effectbe, (i) each Material Contract is valid and binding on individually or in the Company or a Company Subsidiary and in full force and effectaggregate, subject material to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and its subsidiaries, taken as a whole. True, unredacted and complete copies of all of the Company Subsidiaries Material Contracts have not received any written claim of material default under any such Material Contract and, been made available to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractParent.
Appears in 2 contracts
Sources: Merger Agreement (Akari Therapeutics PLC), Merger Agreement (Peak Bio, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.08(a) of the Company Disclosure Letter (such Contracts collectivelySchedules, the “Material Contracts”), as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or otherwise bound by:
(i) any Contract that is required provides for the payment to be filed by or from the Company pursuant to Item 15 or any of Form 10-K under the Exchange Actits Subsidiaries of more than Five Thousand U.S. Dollars ($5,000) per year (other than any Contract described below in this Section 3.08);
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of that requires the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than its Subsidiaries to purchase its total requirements of any Indebtedness between product or among any of the Company and any Company Subsidiaryservice from a Third Party or that contain “take or pay” provisions;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities Contract that provides for the indemnification by the Company of any Person or the assumption of any Company Subsidiary environmental or other Liability of any Person (other than such customary indemnification and assumption of Liability provisions as are present in commercial agreements with any Third Party, customer and vendors entered into in each case that is material to the business ordinary course of the Company and the Company Subsidiaries taken as a wholebusiness);
(iv) all Contracts relating to the purchase or any merger, acquisition, consolidation, sale of any Shares or other securities of the Company business combination or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingdivestiture transaction Contracts;
(v) any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(vi) other than in the ordinary course of business with regard to employees located outside of the United States whose employment agreements contain termination provisions required by applicable Law, any employment, change in control, severance or retention agreement for the benefit of employees that is not terminable by the Company or any of its Subsidiaries, as applicable, at will and without Liability;
(vii) (i) any Contract that limitsrelating to the Indebtedness (including, without limitation, guarantees) of the Company or any of its Subsidiaries and (ii) any Indebtedness relating to deferred revenue whether or not pursuant to a Contract;
(viii) any Contract with any Governmental Authority;
(ix) any obligation which purports to limit, limit or restrict in any respect (A) the ability of the Company or any Company Subsidiary of its Subsidiaries to compete solicit customers or employees, or (B) the manner in which, or the localities in which, all or any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect portion of the capital stock business and operations of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company SubsidiarySubsidiaries may be conducted;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ixx) any Contract that are license agreements material to the business provides for any joint venture, partnership or similar arrangement, including any share of the Company and the Company Subsidiariesrevenues, taken as a wholeprofits, pursuant to which the Company losses, costs or liabilities;
(xi) any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries Contract with its Affiliates (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business);
(xii) any collective bargaining agreements or Contracts with any Union;
(xiii) any Contract with a Material Supplier;
(xiv) any agreement pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any products, technology, intellectual property or business of the Company or any of its Subsidiaries, or containing any non-competition covenants restricting the business activities of the Company or any of its Subsidiaries;
(xv) any Contract with a Material Customer;
(xvi) any Real Property Lease;
(xvii) any lease of personal property;
(xviii) any guarantee of the obligations of customers, suppliers, officers, directors, employees, Affiliates or other third parties;
(xix) any Contract granting an Encumbrance (other than Permitted Encumbrances) upon any of the property or assets of the Company or any of its Subsidiaries other than Encumbrances on Intellectual Property;
(xx) any Contract under which the Company or any of its Subsidiaries has made advances or loans to any other Person;
(xxi) any settlement agreement;
(xxii) any Contract pursuant to which rights of any Third Party are triggered or become exercisable as a result of the execution of this Agreement, the other Transaction Documents or the consummation of the transactions contemplated hereunder or thereunder, either alone or in combination with any other event;
(xxiii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by the Company or any of its Subsidiaries (A) in connection with this Agreement or (B) in the ordinary course of business consistent with past practice; and
(xxxiv) any Contract providing for power of attorney granted by the Company or any change of control its Subsidiaries (all such Contracts disclosed, or similar payments required to a third party be disclosed, in excess of US$1,000,000response to clauses (i) through (xxiii) above, the “Material Contracts”).
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is valid and binding on the Company or a Company Subsidiary its Subsidiaries and, to the Company’s Knowledge, the other parties thereto in accordance with its terms and is in full force and effect. Neither the Company nor any Subsidiary, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementnor, to the knowledge of the Company’s Knowledge, no any other party thereto is in material breach of or violation of, default under (or is alleged to be in breach of or default under) or has provided or received any notice of any intention to terminate, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of . To the Company’s Knowledge, no fact event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event exists that could give rise to any claim of material default under any Material Contract; . Complete and correct copies of each Material Contract (ivincluding all modifications, amendments and supplements thereto and written waivers thereunder) have been made available to Parent. There are no oral waivers under the Company has not received, as of the date of this Boustead Agreement, any notice in writing from Contract for employment between the Company and an employee of the Company, and any person that such person intends to terminate any Material Contractcontract between an Equityholder and the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (OncoCyte Corp), Merger Agreement (OncoCyte Corp)
Material Contracts. (a) Except for (i) this Agreement Section 3.18 of the Company Disclosure Schedule sets forth a list of all Material Contracts. The Company has heretofore made available to Parent true, correct and complete copies of all written or oral contracts and agreements (and the Contracts contemplated to be entered into hereunder by the Company)all amendments, (ii) contracts, arrangements or understandings modifications and supplements thereto and all side letters to which the Company or any Company Subsidiary of its subsidiaries is a party as affecting the obligations of the date of this Agreement (the “Contracts”any party thereunder) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of which the Company or any Company Subsidiary of its subsidiaries is a party to or by which any of its assets or properties are bound by:
that are of the following type: (i) any Contract that is required to be filed by the extent material to the business, assets or properties of the Company pursuant and its subsidiaries taken as a whole, product design or development, or indemnification contracts (including, any contract to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of which the Company or any Company Subsidiaryof its subsidiaries is a party involving employees of the Company); (ii) merchandising or distribution agreements involving the payment of more than US$2,000,000 for each such Contract individuallyin excess of $2,500,000 per year; (iii) to the extent material to the business, other than any Indebtedness between assets or among any properties of the Company and any its subsidiaries taken as a whole, contracts granting a right of first refusal or first negotiation; (iv) to the extent material to the business, assets or properties of the Company Subsidiary;
(iii) any and its subsidiaries taken as a whole, partnership or joint venture Contractagreements; (v) agreements for the acquisition, strategic cooperation sale or partnership arrangementslease of material assets or properties of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1996 involving in excess of $1,000,000; (vi) to the extent material to the business, assets or properties of the Company and its subsidiaries taken as a whole, contracts or agreements with any Governmental Entity; (vii) loan or credit agreements, mortgages, indentures or other agreement involving a sharing of profits, losses, costs agreements or liabilities instruments evidencing indebtedness for borrowed money by the Company or any Company Subsidiary with of its subsidiaries or any Third Partysuch agreement pursuant to which indebtedness for borrowed money, in each case that is involving in excess of $1,000,000; (viii) to the extent material to the business business, assets or properties of the Company and the Company Subsidiaries its subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary , agreements that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports purport to limit, curtail or restrict the ability of the Company or any Company Subsidiary of its subsidiaries to compete in any material line of business or with any person or entity or in any geographic area or during any period line of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
business; (ix) any Contract that are license agreements to the extent material to the business business, assets or properties of the Company and the Company Subsidiaries, its subsidiaries taken as a whole, pursuant foundry, wafer manufacturing or fabricating agreements, (x) supply or second source agreements involving the payment of in excess of $2,500,000 per year, (xi) agreements with customers relating to which the Company or sale of products involving the payment of in excess of $2,500,000 per year and (xii) commitments and agreements to enter into any of the Company Subsidiaries licenses foregoing (collectively, together with any such contracts entered into in Intellectual Property or licenses out Intellectual Property owned by accordance with Section 5.1, the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business"MATERIAL CONTRACTS"); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Each of the Material Adverse Effect, (i) each Material Contract is Contracts constitutes the valid and legally binding on obligation of the Company or a Company Subsidiary its subsidiaries, enforceable in accordance with its terms, and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to . There is no default under any Material Contract so listed either by the Company (or affecting creditors’ rights, and to general equity principles; (iiits subsidiaries) as of the date of this Agreementor, to the knowledge Company's knowledge, by any other party thereto, and no event has occurred that with the giving of notice, the lapse of time, or both would constitute a default thereunder by the Company (or its subsidiaries) or, to the Company, no other party is in material breach or violation of, or default under's knowledge, any Material Contract; other party.
(iiic) the Company and the Company Subsidiaries have not received any written claim of material default under No party to any such Material Contract and, has given notice to the knowledge Company of the Company, no fact or event exists that could give rise to any made a claim of material default under any Material Contract; and (iv) against the Company has not received, as in respect of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractbreach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Texas Instruments Inc)
Material Contracts. (a) Except for Section 3.13(a) of the Parent Disclosure Schedule sets forth a complete and correct list of each of the following Contracts (iother than Parent Plans) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company Parent or any Company Subsidiary of its Subsidiaries is a party (each of the Contracts and other documents required to be listed in Section 3.13(a) of the Parent Disclosure Schedule, a “Parent Material Contract”) as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byDate:
(i) any Contract that is required Contracts with Parent’s top five marketing and advertising partners based on cost in the 12-month period prior to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange ActAgreement Date;
(ii) All licenses pursuant to which any Contract relating Person is authorized to use any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyParent-Owned IP Rights, other than any Indebtedness between Parent-Owned IP Rights licensed to customers or among any marketing and advertising partners in the ordinary course of the Company and any Company Subsidiarybusiness;
(iii) any joint venture ContractContracts for the acquisition, strategic cooperation sale or partnership arrangementslease of material properties or material assets (by merger, purchase or sale of stock or assets or otherwise) other agreement involving a sharing than for capital equipment in the ordinary course of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholebusiness;
(iv) all Contracts relating to the purchase Loan or sale of any Shares credit agreement, mortgage, indenture, note or other securities of Contract or instrument evidencing indebtedness for borrowed money (contingent or otherwise) or for the Company or any Company Subsidiary that has a fair market value or deferred purchase price of more than US$1,000,000 under property or services by Parent or any of its Subsidiaries, or any Contract or instrument pursuant to which there are material rights indebtedness for borrowed money (contingent or obligations outstandingotherwise) or for the deferred purchase price of property or services may be incurred or is guaranteed by Parent or any of its Subsidiaries, or any guarantees by third parties for the benefit of Parent or any of its Subsidiaries, in each case having an outstanding principal amount in excess of $100,000;
(v) Mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any Contract that limits, material property or purports to limit, the ability material assets of the Company Parent or any Company Subsidiary to compete of its Subsidiaries other than for capital equipment in the ordinary course of business;
(vi) Contracts containing a covenant expressly limiting in any material line respect the freedom of Parent or any of its Subsidiaries to engage in any business or with any person or entity Person or in any geographic area or during to compete with any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company SubsidiaryPerson;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that Contracts to which a Governmental Authority is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partya party;
(viii) any Contract providing for the acquisition from another person that gives rise to any payment or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) benefit in excess of US$5,000,000$100,000 as a result of the performance of this Agreement or any of the Transactions;
(ix) Contracts for the leases or subleases of real property to or by Parent or a Subsidiary, other than leases or subleases that do not involve aggregate payments in excess of $100,000 over the 12-month period commencing on the Agreement Date;
(x) any Contract that are license agreements material settlement agreement of any Legal Proceeding since the Parent Reference Date; and
(xi) any other agreement (or group of related agreements) the performance of which requires aggregate payments to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or from Parent or any of its Subsidiaries after the Company Subsidiaries licenses Agreement Date in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (excess of $250,000 annually, other than license agreements for commercially available software on standard terms with marketing or non-exclusive licenses granted advertising partners entered into in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000business that are terminable by Parent upon less than 30 days’ notice without penalty.
(b) Except as has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Parent Material Adverse Effect, (i) each of the Parent Material Contract is valid and Contracts is, as of the Agreement Date, valid, binding on the Company or a Company Subsidiary and in full force and effecteffect and is enforceable in accordance with its terms by Parent or the applicable Subsidiary, subject to bankruptcythe General Enforceability Exceptions. Neither Parent nor the applicable Subsidiary is in default in any material respect under any Parent Material Contract, insolvencynor, fraudulent transferto the Knowledge of Parent, reorganizationdoes any condition exist that, moratorium with notice or lapse of time or both, would constitute a default in any material respect thereunder by Parent or the applicable Subsidiary. As of the Agreement Date, to the Knowledge of Parent, (i) no other party to any Parent Material Contract is in default, in any material respect, under any of the provisions, terms or conditions thereunder and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as no condition exists that with notice or lapse of time or both would constitute a default in any material respect by any such other party thereunder. As of the date of this AgreementAgreement Date, to the knowledge Knowledge of the CompanyParent, no other party is in neither Parent nor any of its Subsidiaries has received written notice of (i) any termination or cancellation of any Parent Material Contract or (ii) any past, present or future material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Parent Material Contract, or granted to any third party any material rights, adverse or otherwise, that would constitute a material breach of any Parent Material Contract and, (it being understood and agreed that any breach or default that gives the other party a right to the knowledge of the Company, no fact termination shall be considered a material breach or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractdefault).
Appears in 2 contracts
Sources: Merger Agreement (Spark Networks SE), Agreement and Plan of Merger
Material Contracts. (a) Except for (iSection 2.14(a) this Agreement (and of the Contracts contemplated to be entered into hereunder by the Company)Disclosure Schedule identifies, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (provided that the “Contracts”disclosures required by Section 2.14(a)(xv) filed as exhibits shall be provided and deemed incorporated into the Disclosure Schedule not more than five (5) Business Days after the date hereof), in each subpart that corresponds to the subsection listed below, any Contract in effect as of the date hereof, (x) to which the Company SEC Reports or any Subsidiary is a party or (iiiy) as by which the Company or any Subsidiary or any of their assets is bound or under which the Company or any Subsidiary has any obligation (the Contracts described below, whether or not set forth in Section 3.15(a2.14(a) of the Company Disclosure Letter (such Contracts collectivelySchedule, being referred to herein as the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actwith a Significant Customer or a Significant Supplier;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any Subsidiary (A) has been appointed a partner, reseller, dealer, or distributor or OEM or (B) has appointed another party as dealer, distributor, sales representative, OEM, value added reseller, remarketer or reseller of any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by Products;
(iii) pursuant to which the Company or such any Subsidiary is bound to or has committed to provide any Company Product to any third party on a most favored pricing basis;
(iv) pursuant to which the Company or any Subsidiary is bound to, or has committed to provide or license (A) any patents that are Company Subsidiaries IP to any third party, or (B) any Intellectual Property Rights to any third party on an exclusive basis, or (C) any commitment to acquire or license any product or service on an exclusive basis from a third party;
(v) imposing any restriction by its terms on the right or ability of the Company or any Subsidiary (or that would purport by its terms to limit the freedom of Parent or any of its Affiliates): (A) to compete with any other Person or to engage in any line of business, market or geographic area, or to sell, license, manufacture or otherwise distribute any of its technology or products, or from providing services, to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the market; or (B) to solicit the employment of, or hire, any potential employees, consultants or independent contractors (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted disclosure agreements entered into in the ordinary course of business); andnotwithstanding the foregoing in this sub-section (v), restrictions relating to the license grants of Intellectual Property Rights from third Persons to the Company or any Subsidiary (or restrictions on the use of the software or Intellectual Property Rights embodied in such licenses) shall not be considered Material Contracts even if they otherwise meet the requirements of this sub-section (v);
(vi) that grants (A) any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of the Subsidiaries, or (B) any royalties to any Person;
(vii) set forth or required to be set forth in Sections 2.13(a)(ii) of the Disclosure Schedule;
(viii) set forth or required to be set forth in Section 2.15(a)(1) of the Disclosure Schedule;
(ix) that is a Lease Agreement;
(x) any Contract providing for any change of control or similar relating to capital expenditures and involving future payments to a third party in excess of US$1,000,000$100,000 individually or $500,000 in the aggregate;
(xi) relating to the settlement of any Action for an amount in excess of $50,000;
(xii) relating to (A) the disposition or acquisition by the Company of material assets in any other Person or (B) the acquisition by the Company of any securities of any other Person;
(xiii) Contract of any guaranty, pledge, performance or completion bond, indemnity or surety arrangement, but excluding indemnities granted in the ordinary course of business in connection with the sale of Company Products, standard customer, supplier and distributor Contracts, and indemnification agreements with officers or directors of the Company or its Subsidiary that have been made available to Parent;
(xiv) creating or governing any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(xv) any prime (direct) contract executed or submitted to or on behalf of any Governmental Entity;
(xvi) any Contract not required to be listed above pursuant to which any obligations continue to be outstanding and that contemplates or involves: (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $500,000 per year in the aggregate; or (B) the performance of services having a value in excess of $500,000 per year in the aggregate.
(b) Except The Company has Made Available true, correct and complete copies of all written Material Contracts in effect as would of the date hereof, including all amendments thereto. Section 2.14(b) of the Disclosure Schedule provides an accurate description of the terms of each Material Contract that is not reasonably be expected to have a Company Material Adverse Effect, (i) each in written form. Each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effecteffect and is enforceable against the Company and by the Company or the Subsidiaries in accordance with its terms, subject to bankruptcythe Enforceability Limitations. Neither the Company nor any Subsidiary has violated or breached in any material respect, insolvencyor committed any material default under, fraudulent transferany Material Contract, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementand, to the knowledge Knowledge of the Company, no other party is Person has violated or breached in any material respect, or committed any material default under, any such Material Contract. To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to: (i) result in a violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract; (iii) give any Person the right to accelerate the maturity or performance of any Material Contract; or (iv) give any Person the right to cancel, terminate or modify any Material Contract. Neither the Company nor any Subsidiary has received any written notice regarding any actual or possible violation or breach of, or default under, any Material Contract; (iii) . Neither the Company and the Company Subsidiaries have not received nor any written claim Subsidiary has waived any of its material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default rights under any Material Contract; and (iv) . Neither the Company nor any Subsidiary has not received, as of the date of this Agreement, received any written notice in writing from any person that such person intends a Person threatening to terminate or refuse to perform its obligations under any Material Contract (regardless of whether such Person has the right to do so under such Contract).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp), Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp)
Material Contracts. (a) Except for Section 3.17(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of each of the following Contracts (iother than any Company Benefit Plans) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of by which the Company or any of its Subsidiaries or any of their assets or businesses are bound (and any material amendments, supplements and modifications thereto), and the Company Subsidiary is a party has made available to or bound byParent true and complete copies of:
(i) any each Contract that is would be required to be filed by the Company as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange ActSecurities Act that has not been filed as an exhibit to a Company SEC Document;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness Contracts with (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company SubsidiaryA) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company Material Vendors and (B) any Company Subsidiaryof the Material Customers;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities than with respect to an entity that is wholly owned by the Company or any of its Subsidiaries, Contracts concerning the establishment or operation of a partnership, joint venture or limited liability company in which the Company Subsidiary or any of its Subsidiaries holds an equity interest (including with any Third Partyrespect to each Minority Investment), in each case or that is material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(iv) all Contracts relating to the purchase (A) (x) licenses or sale of any Shares sublicenses (or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under Contracts in which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging Subsidiaries grants or is granted a similar right to use) of the capital stock Intellectual Property from or to any third party (other than (1) licenses or sublicenses of the Company generally commercially available off-the-shelf software programs with annual license fees or any wholly owned Company Subsidiary or prohibits the issuance a total replacement cost of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more less than US$$250,000, (2) non-exclusive licenses or sublicenses to customers in the ordinary course of business consistent with past practice, or (3) non-exclusive licenses or sublicenses ancillary to commercial agreements entered into in the ordinary course of business consistent with past practice) or (y) a Contract that, since April 27, 2024, provided or provides for the assignment of Intellectual Property to or from the Company or any Company Subsidiary, by or to any Third Party;
third party (viii) any Contract providing except for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwiseinventor assignments), in the case of assets or capital stock or other equity interests each of another person clauses (x) and (y), except for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract assignments, licenses and sublicenses that are license agreements not material to the business of the Company and the Company Subsidiaries, taken as a whole, or (B) a Contract that subjects Company Owned Intellectual Property to any material restriction;
(v) any Contract with an employee or independent contractor of the Company or any of its Subsidiaries that provides for annual base compensation in excess of $350,000;
(vi) any Labor Agreement;
(vii) Contracts containing (A) a covenant materially restricting the ability of the Company or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers; (B) a provision granting the other party “most favored nation” status or equivalent preferential pricing terms; (C) a provision providing for an exclusive license, supply, distribution or other right in connection with any product or technology purchased or supplied by the Company; or (D) a right of first or last offer or refusal to any third party, except in the case of each of clauses (B) and (D) for such restrictions, requirements and provisions that are not material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(viii) indentures, credit agreements, loan agreements and similar instruments pursuant to which the Company or any of its Subsidiaries has or will incur or assume any indebtedness or has or will guarantee or otherwise become liable for any indebtedness of any other Person for borrowed money in excess of $5,000,000 other than any indentures, credit agreements, loan agreements or similar instruments between or among any of the Company Subsidiaries licenses in Intellectual Property and any of its Subsidiaries;
(ix) settlement, conciliation or licenses out Intellectual Property owned by similar Contracts, including any such agreement with any Governmental Entity, that would require the Company or such any of its Subsidiaries to pay, after taking into account amounts paid or payable by insurance, consideration of more than $1,000,000 individually or $2,000,000 in the aggregate after the date hereof or that contains material continuing restrictions on the business or operations of or other non-monetary obligations of the Company Subsidiary or its Subsidiaries;
(x) Contracts that obligate the Company or any of its Subsidiaries to make any future capital investment or capital expenditure in excess of $1,000,000 (individually or in the aggregate) other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in respect of purchases of products from suppliers that are to be sold to customers in the ordinary course of business); and;
(xxi) Contracts (A) that provide for the acquisition or disposition by the Company or any Contract providing for of its Subsidiaries of any change business or material assets (whether by merger, sale of control stock, sale of assets or similar payments otherwise) under which the Company or any of its Subsidiaries has any material continuing obligations (monetary or otherwise) or would reasonably be expected to a third party have liabilities in excess of US$1,000,000$1,000,000 after the date hereof or (B) pursuant to which the Company or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary, in each case, under which the Company or any of its Subsidiaries has obligations remaining to be performed as of the date hereof; or
(xii) any shareholders, investors rights, registration rights, joint venture or similar agreements or arrangements.
(b) Except as has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on all Contracts set forth or required to be set forth in Section 3.17(a) of the Company Disclosure Schedule or a filed or required to be filed as exhibits to the Company Subsidiary SEC Documents (except to the extent subsequently terminated or superseded) (the “Company Material Contracts”) are valid, binding and in full force and effecteffect and are enforceable by the Company or the applicable Subsidiary in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar except as limited by Laws affecting the enforcement of general applicability relating to or affecting creditors’ rightsrights generally, and to by general equity principles; equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) as the Company, or the applicable Subsidiary, has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or without notice or lapse of the date of this Agreementtime, or both) in breach or default thereunder and, to the knowledge Knowledge of the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in material breach or default thereunder and (iii) since April 25, 2021, neither the Company nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential material violation of, or default undermaterial failure to comply with, any Material Contract; (iii) the term or requirement of any Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) 4.15 of the Company Disclosure Letter Schedule sets forth all of the following Contracts to which the Company, the Purchased Companies or any of their Subsidiaries is a party or by which it is bound under which there are continuing obligations (such other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
): (i) Contracts with any Contract that current officer or director of the Company, the Purchased Companies or any of their Subsidiaries; (ii) Contracts with any labor union or association representing any employee of the Company, the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to be filed by purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the Company pursuant to Item 15 sale of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contractassets of the Company, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company Purchased Companies or any Company Subsidiary with of their Subsidiaries other than in the Ordinary Course of Business or for the grant to any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale person of any Shares or other securities preferential rights to purchase any of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
its assets; (v) any Contract that limits, or purports to limitjoint venture agreements; (vi) Contracts containing covenants of the Company, the ability of the Company Purchased Companies or any Company Subsidiary of their Subsidiaries not to compete in any material line of business or with any person in any geographical area or entity covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographic area geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or during any period of time;
(vi) their Subsidiaries of any Contract prohibiting the payment of dividends operating business or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
person; (viii) any Contract providing for Contracts relating to the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), borrowing of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
money; (ix) any Contract that distributor, supplier (as such term is used in the Company SEC Documents), advertising, agency or manufacturer’s representative Contract; (x) agreement of guarantee, support, assumption or endorsement of, or any similar commitment with respect to the Liability or Indebtedness of any other Person; (xi) trust indenture, mortgage, promissory note, loan agreement or (xii) other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are license agreements otherwise material to the business Company, the Purchased Companies and any of the Company and the Company Subsidiaries, their Subsidiaries taken as a whole. The Company, pursuant the Purchased Companies and their Subsidiaries have provided or made available to which the Company or any Purchaser true and complete copies of all of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by written Material Contracts and written summaries of the Company or such Company Subsidiary or Company Subsidiaries (material terms of all of the oral Material Contracts. All of the Material Contracts and other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and are in full force and effecteffect and are the legal, valid and binding obligation of the Company, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or laws affecting creditors’ rightsrights and remedies generally and subject, and as to enforceability, to general principles of equity principles; (ii) as regardless of the date of this Agreement, to the knowledge whether enforcement is sought in a proceeding at law or in equity). None of the Company, no other party the Purchased Companies or any of their Subsidiaries is in default in any material breach or violation of, or default under, respect under any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, nor, to the knowledge Knowledge of the Company, no fact the Purchased Companies or event exists that could give rise any of their Subsidiaries, is any other party to any claim of Material Contract in default thereunder in any material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractrespect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Applied Materials Inc /De), Stock and Asset Purchase Agreement (Segal Edward D)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date For purposes of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by“F▇▇▇▇▇ Material Contract” shall mean:
(iA) Any employment, severance, consulting or other Contract with an employee or former employee, officer or director of F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ (other than any unwritten Contract that is required to be filed for the employment of any such employee or former employee implied at law) which will require the payment of amounts by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇, as applicable, after the Company pursuant to Item 15 date hereof in excess of Form 10-K under the Exchange Act$250,000 per annum;
(iiB) Any collective bargaining Contract with any labor union;
(C) Any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $2,500,000;
(D) Any Contract containing covenants of F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ (1) to indemnify or hold harmless another Person or group of Persons, unless such indemnification or hold harmless obligation to such Person, or group of Persons, as the case may be, would not reasonably be expected to exceed a maximum of $1,000,000 (except for product warranty obligations in Contracts for the sale of goods in the ordinary course of business) or (2) not to (or otherwise restrict or limit the ability of F▇▇▇▇▇ or any of its Subsidiaries to) compete in any line of business or geographic area;
(E) Any Contract requiring aggregate future payments or expenditures in excess of $2,500,000 and relating to cleanup, abatement, remediation or similar actions in connection with environmental liabilities;
(F) Any license, royalty Contract or other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by F▇▇▇▇▇ or any creditSubsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum;
(G) Any Contract pursuant to which F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ has entered into a partnership or joint venture with any other Person (other than F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇);
(H) Any indenture, loan or facility arrangementmortgage, loan, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company credit Contract under which F▇▇▇▇▇ or any Company Subsidiary) Subsidiary of more than US$2,000,000 F▇▇▇▇▇ has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise or any guaranteed indebtedness for money borrowed by others, in each such Contract individuallycase, other than any Indebtedness between for or among any guaranteeing an amount in excess of the Company and any Company Subsidiary$2,500,000;
(iiiI) Any Contract under which F▇▇▇▇▇ or any joint venture ContractSubsidiary of F▇▇▇▇▇ is (1) a lessee of real property, strategic cooperation or partnership arrangements(2) a lessee of, or holds or uses, any machinery, equipment, vehicle or other agreement involving tangible personal property owned by a sharing third Person, (3) a lessor of profitsreal property, losses, costs or liabilities (4) a lessor of any tangible personal property owned by the Company F▇▇▇▇▇ or any Company Subsidiary with any Third Partyof F▇▇▇▇▇, in each case that is material to the business which requires annual payments in excess of the Company and the Company Subsidiaries taken as a whole$1,000,000;
(ivJ) all Contracts Any Contract (other than purchase or sale orders in the ordinary course of business that are terminable or cancelable without penalty on 90 days’ notice or less) under which F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ is a purchaser or supplier of goods and services which, pursuant to the terms thereof, requires payments by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum;
(K) Any material Contract (including guarantees) between F▇▇▇▇▇ or any wholly-owned Subsidiary of F▇▇▇▇▇ and another Subsidiary of F▇▇▇▇▇ that is not wholly-owned by F▇▇▇▇▇;
(L) Any Contract which requires payments by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum containing “change of control” or similar provisions;
(M) Any Contract entered into on or after January 1, 2001 relating to the purchase acquisition or disposition of any business or any assets (whether by merger, sale of any Shares stock or other securities assets or otherwise), in an amount in excess of $5,000,000 (all of which Contracts have been made available to Apogent prior to the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingdate hereof in the data room maintained by F▇▇▇▇▇’▇ counsel in connection with the transactions contemplated hereby);
(vN) Any Contract (other than Contracts of the type described in subclauses (A) through (M) above) that involves aggregate payments by or to F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum, other than purchase or sales orders or other Contracts entered into in the ordinary course of business consistent with past practice that are terminable or cancelable without penalty on 90 days’ notice or less; and
(O) Any Contract that limitsthe termination or breach of which, or purports the failure to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions obtain consent in respect of the capital stock of the Company or any of its wholly owned Company Subsidiariesof, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could would reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company have a Material Adverse Effect on F▇▇▇▇▇ and the Company its Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) Schedule. Section 3.2(q)(ii) of the F▇▇▇▇▇ Disclosure Schedule sets forth a list of all F▇▇▇▇▇ Material Contracts as of the date hereof. With respect to the Contracts described in (i) Section 3.2(q)(i)(D), (F), (I), (J), (L) and (N) of this Agreement, to the knowledge Section 3.2(q)(ii) of the Company, no other party is in material breach or violation ofF▇▇▇▇▇ Disclosure Schedule sets forth only Contracts which require payments, or default underin the case of clause (D) involve obligations, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim in excess of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; $2,500,000 and (ivii) the Company has not received, as of the date Section 3.2(q)(i)(N) of this Agreement, Section 3.2(q)(ii) of the F▇▇▇▇▇ Disclosure Schedule sets forth only Contracts involving payments to F▇▇▇▇▇, or any notice Subsidiary of F▇▇▇▇▇, in writing from any person that such person intends to terminate any Material Contractexcess of $10,000,000.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Apogent Technologies Inc), Agreement and Plan of Merger (Fisher Scientific International Inc)
Material Contracts. (a) Except for (i) this Agreement (those agreements and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) other documents filed as exhibits or incorporated by reference to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Company’s Annual Report on Form 10-K under for the Exchange Act;
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 nor any of its 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) any Contract relating to any credit, loan that contains a non-compete or facility arrangement, guarantee client or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company customer non-solicit requirement or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of provisions that restricts the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangementsconduct of, or other agreement involving a sharing the manner of profitsconducting, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiariesaffiliates (or, prohibits the pledging upon consummation of the capital stock Merger, of the Purchaser or any of its affiliates); (iii) that obligates Company or any wholly owned 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 Subsidiary or prohibits any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the issuance 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 guaranty material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(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) any Contract providing that provides for any change of control or similar payments to be made by Company or any of its Subsidiaries upon a third 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 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 excess the ordinary course of US$1,000,000business 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, correct and complete copies of each Material Contract.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is a valid and legally binding on the agreement of Company or a Company Subsidiary 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, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as Company and each of its Subsidiaries has duly performed all material obligations required to be performed by it prior to the date hereof under each Material Contract, (iii) neither Company nor any of this Agreementits Subsidiaries, and, to the knowledge Knowledge of the Company, no other party any counterparty or counterparties, is in material breach or violation of, or default under, of any provision of any Material Contract; , and (iiiiv) 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 and the Company or any of its Subsidiaries have not received any written claim of material default under any such Material Contract and, to or provide any party thereto with the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends right to terminate any such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Hilltop Holdings Inc.), Merger Agreement (Plainscapital Corp)
Material Contracts. (a) Except for (i) this Agreement (and the Reassignment Agreement, Section 4.14 of the Huya Disclosure Schedule sets forth a true and complete list of all of the following types of Contracts contemplated to be entered into hereunder by the Company), that currently remain in effect (iix) contracts, arrangements or understandings to which the Company Huya or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement or which binds or affects their respective properties or assets, and (the “Contracts”y) have not been filed as exhibits with or furnished to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of an exhibit to the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byHuya SEC Reports:
(i) any Contract that is would be required to be filed or furnished by the Company Huya pursuant to Item 15 19 and paragraph 4 of the Instructions to Exhibits of Form 1020-K F under the Exchange Act;
(ii) any Contract relating to any creditgranting a right of first refusal, loan first offer or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryfirst negotiation;
(iii) any Contract relating to (A) the formation, creation, operation, management or control of a partnership, joint venture Contractventure, limited liability company or similar arrangement, (B) strategic cooperation or partnership arrangements, or (C) other agreement similar agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Partyliabilities, in each case case, more than RMB20,000,000, by Huya or any of its Subsidiaries;
(iv) any Contract for the acquisition, sale or lease (including leases in connection with financing transactions) of material properties or assets of Huya (by merger, purchase or sale of assets or stock or otherwise);
(v) any Contract with any Governmental Entity;
(vi) any Contract granting or evidencing a Lien on any material properties or assets of Huya or any of its Subsidiaries, other than a Permitted Lien;
(vii) any Contract involving the capital expenditure by Huya or its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, in each case, more than RMB20,000,000;
(viii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary 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), or investment in, any Person, in each case, more than RMB20,000,000, other than a wholly-owned Subsidiary of Huya or any Contract relating to the making of any such loan, advance or investment that is material to the business financial status of the Company and the Company Subsidiaries taken as a wholeHuya;
(ivix) all Contracts relating any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of Huya or any of its Subsidiaries to compete in any geographic area, industry or line of business;
(x) any Contract that contains a put, call or similar right pursuant to which Huya or any of its Subsidiaries could be required to purchase or sale sell, as applicable, any equity interests or assets of any Shares or other securities of the Company or any Company Subsidiary Person that has a have fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingRMB20,000,000;
(vxi) any Contracts involving any resolution or settlement of any actual or threatened material litigation, arbitration, claim or other dispute, more than RMB5,000,000;
(xii) any Contract (other than Contracts granting Huya Options / Huya RSU Awards) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the transactions contemplated by this Agreement, including the Merger;
(xiii) any Contract that limits, or purports contains restrictions with respect to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(viA) any Contract prohibiting the payment of dividends or distributions in any distribution with respect to equity interests of the capital stock of the Company Huya or any of its wholly owned Company Subsidiaries, prohibits the (B) pledging of the share capital stock of the Company Huya or any wholly owned Company Subsidiary of its Subsidiaries or prohibits the (C) issuance of any guaranty by the Company Huya or any wholly owned Company Subsidiaryof its Subsidiaries;
(viixiv) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partymaterial Huya IP Agreements with an aggregate contract value exceeding RMB20,000,000;
(viiixv) Contracts with top twenty streamers and top twenty talent agencies, in each case, in terms of contract value; or
(xvi) any Contract providing for the acquisition from another person other Contract, a breach or disposition to another person, directly or indirectly (by merger, license or otherwise), termination of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not could reasonably be expected to have a Company Huya Material Adverse Effect. Each Contract of the type described in this Section 4.14(a), (i) together with any Contract that has been filed or furnished by Huya pursuant to Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act, is referred to herein as a “Huya Material Contract”. A true and complete copy of each Huya Material Contract is in effect as of the date hereof has been made available to DouYu (including, where applicable, pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(b) Each Huya Material Contract constitutes the valid and legally binding on the Company obligation of Huya or a Company Subsidiary its applicable Subsidiary, enforceable in accordance with its terms and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium Bankruptcy and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, Equity Exception. There is no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Huya Material Contract andeither by Huya or, to Huya’s knowledge, by any other party thereto, and no event has occurred that with the knowledge lapse of time or the Companygiving of notice or both would constitute a default thereunder by Huya or, no fact or event exists that could give rise to Huya’s knowledge, any other party. No party to any such Huya Material Contract has given notice to Huya of or made a claim of against Huya with respect to any material breach or default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractthereunder.
Appears in 2 contracts
Sources: Merger Agreement (HUYA Inc.), Merger Agreement (DouYu International Holdings LTD)
Material Contracts. (a) Except for (i) this Agreement (those agreements and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) other documents filed as exhibits or incorporated by reference to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Company’s Annual Report on Form 10-K under for the Exchange Act;
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 nor any of its 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) any Contract relating to any credit, loan that contains a non-compete or facility arrangement, guarantee client or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company customer non-solicit requirement or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of provisions that materially restricts the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangementsconduct of, or other agreement involving a sharing the manner of profitsconducting, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiariesaffiliates (or, prohibits the pledging upon consummation of the capital stock Merger, of the Purchaser or any of its affiliates); (iii) that obligates Company or any wholly owned 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 Subsidiary or prohibits any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the issuance 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 guaranty material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(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) any Contract providing that provides for any change of control or similar payments to be made by Company or any of its Subsidiaries upon a third 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 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 excess the ordinary course of US$1,000,000business 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, correct and complete copies of each Material Contract.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is a valid and legally binding on the agreement of Company or a Company Subsidiary 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, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as Company and each of its Subsidiaries has duly performed all material obligations required to be performed by it prior to the date hereof under each Material Contract, (iii) neither Company nor any of this Agreementits Subsidiaries, and, to the knowledge Knowledge of the Company, no other party any counterparty or counterparties, is in material breach or violation of, or default under, of any provision of any Material Contract; , and (iiiiv) 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 and the Company or any of its Subsidiaries have not received any written claim of material default under any such Material Contract and, to or provide any party thereto with the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends right to terminate any such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (West Coast Bancorp /New/Or/), Merger Agreement (Columbia Banking System Inc)
Material Contracts. (a) Except for (iSection 7.9(a) of the Clinigence Disclosure Schedule provides a true and complete list of each of the following contracts to which Clinigence or any of its Subsidiaries is party other than this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Clinigence Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) All leases for real property used by Clinigence or any of its Subsidiaries and all leases of personal property and any Contract that is required affecting any right, title or interest in or to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actreal property;
(ii) any Contract relating to any creditAll Contracts with Persons who are Service Providers, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryall Clinigence Plans;
(iii) any joint venture Contract, strategic cooperation Any Contract involving financing or partnership arrangementsborrowing of money, or evidencing indebtedness; any liability for borrowed money; any letters of credit; any obligation for the deferred purchase price of property in excess of $25,000; or guaranteeing in any way any Contract in connection with any Person;
(iv) Any joint venture, partnership, cooperative arrangement or any other agreement Contract involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(ivv) all Contracts relating Any Contract with any Governmental Authority;
(vi) Any Contract with respect to the discharge, storage or removal of effluent, waste or pollutants;
(vii) Any Contract for the purchase or sale of any Shares or other securities Assets of the Company Clinigence or any Company Subsidiary that has a fair market value of its Subsidiaries other than in the ordinary course of business or for the option or preferential rights to purchase price or sell any Assets of more than US$1,000,000 under which there are material rights Clinigence or obligations outstandingany of its Subsidiaries;
(vviii) any Any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary containing covenants not to compete in any material line of business or with any person or entity or Person in any geographic geographical area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions that would otherwise result in respect of the capital stock of the Company Clinigence or any of its wholly owned Company SubsidiariesSubsidiaries being bound by, prohibits the pledging of the capital stock of the Company or subject to, any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earnnon-out, installment compete or other contingent obligations restriction on the operation or similar payments that is still in effect and could reasonably be expected to result in payment scope of more than US$250,000its businesses, to or from including the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000Clinigence Business;
(ix) any Any Contract that are license agreements material related to the acquisition of a business or the equity of any other Entity or the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company sale of Clinigence or any of the Company its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company any Asset of Clinigence or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course any of business); andits Subsidiaries;
(x) Any other Contract which (i) provides for payment or performance by either party thereto having an aggregate value of $25,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, Clinigence or any of its Subsidiaries and an Affiliate thereof;
(xi) Any proposed arrangement of a type that, if entered into, would be a Contract providing for described in any change of control or similar payments to a third party in excess of US$1,000,000Section 7.9(a)(i) through 7.9(a)(x) above.
(b) Except as would not reasonably be expected True and complete copies of each written Clinigence Material Contract and true and complete written summaries of each oral Clinigence Material Contract (including all amendments, supplements, modifications and waivers thereto) have been provided to have a Company Material Adverse Effect, iGambit by Clinigence.
(ic) each Each Clinigence Material Contract is valid and binding on the Company or a Company Subsidiary and currently valid, in full force and effect, subject to bankruptcyand is enforceable by Clinigence or its Subsidiaries, insolvencyas applicable, fraudulent transfer, reorganization, moratorium and similar Laws in accordance with its terms.
(d) Neither Clinigence nor any of general applicability relating to or affecting creditors’ rightsits Subsidiaries is in default, and to general equity principles; no party has notified Clinigence or any of its Subsidiaries in writing that Clinigence or any of its Subsidiaries is in default, under any Clinigence Material Contract. No event has occurred, and no circumstance or condition exists, that might, with or without notice or lapse of time:
(i) result in a violation or breach of any of the provisions of any Clinigence Material Contract;
(ii) as give any Person the right to declare a default or exercise any remedy under any Clinigence Material Contract;
(iii) give any Person the right to accelerate the maturity or performance of the date of this Agreementany Clinigence Material Contract or to cancel, to the knowledge of the Company, no other party is in material breach terminate or violation of, or default under, modify any Clinigence Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and or
(iv) the Company has not received, as of the date of this Agreement, otherwise have an Clinigence Material Adverse Effect in connection with any notice in writing from any person that such person intends to terminate any Clinigence Material Contract.
(e) Neither Clinigence nor any of its Subsidiaries has waived any of its rights under any Clinigence Material Contract.
(f) The performance of the Clinigence Material Contracts will not result in any violation of or failure by Clinigence or any of its Subsidiaries to comply in all material respects with any Legal Requirement.
(g) The Clinigence Material Contracts constitute all of the Contracts necessary to enable Clinigence and its Subsidiaries to conduct the Clinigence Business in the manner in which such Clinigence Business is currently being conducted.
(h) The consummation of the Merger shall not result in Clinigence or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the operation or scope of its businesses, including the Clinigence Business.
Appears in 2 contracts
Sources: Merger Agreement (iGambit, Inc.), Merger Agreement (iGambit, Inc.)
Material Contracts. (a) Except for (i) For purposes of this Agreement (and Agreement, "Material Contract" shall mean the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings following to which the Company or any Company Subsidiary of its Subsidiaries is a party as or any of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byrespective assets are bound:
(i) any Contract that "material contract" (as such term is required to be defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company pursuant to Item 15 of Form 10-K under with the Exchange ActSEC;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company SubsidiaryLease;
(iii) any joint venture Contractemployment or consulting Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, strategic cooperation or partnership arrangements(y) member of the Company Board, or other agreement involving a sharing of profits, losses, costs (z) Company Employee;
(iv) any Contract providing for indemnification or liabilities any guaranty by the Company or any Subsidiary thereof, other than (x) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (A) the Company or another wholly-owned Subsidiary thereof or (B) any Subsidiary (other than a wholly-owned Subsidiary) of the Company that was entered into in the ordinary course of business pursuant to or in connection with a customer Contract, , (y) any Contract providing for any guaranty by a Person other than the Company with respect to a liability or obligation of the Company, or (z) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the ordinary course of business;
(v) any Contract that purports to limit the right of the Company or any of its Subsidiaries (or, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) (x) to engage in any line of business, or (y) to compete with any Third PartyPerson or operate in any geographical location;
(vi) any Contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries after the date of this Agreement of assets other than consumable inventory (including, without limitation, fibers);
(vii) any Contract relating to the repair and maintenance of Company Medical Equipment involving payments by the Company in each case excess of $50,000 in any year;
(viii) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(ix) any partnership, joint venture or similar Contract that is material to the business of the Company and the Company its Subsidiaries taken as a whole;
(ivx) all Contracts any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts, in each case relating to the purchase indebtedness for borrowed money, whether as borrower or sale of any Shares or lender, other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingaccounts receivables and payables;
(vxi) any employee collective bargaining agreement or other Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timelabor union;
(vixii) any other Contract prohibiting the payment of dividends or distributions in respect of the capital stock of under which the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging Subsidiaries is obligated to make payment or incur costs in excess of the capital stock of the Company or $50,000 in any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryyear and which is not otherwise described in clauses (i)-(xi) above;
(viixiii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments which is not otherwise described in clauses (i)-(xii) above that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company its Subsidiaries, taken as a whole, pursuant to which the Company or any and listed on Section 4.19(b) of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)Disclosure Letter; andor
(xxiv) any Contract providing for any change Company IP Agreement that is material to the conduct of control or similar payments to a third party in excess of US$1,000,000the Company's business.
(b) Except Section 4.19(b) of the Company Disclosure Letter sets forth a true and complete list as would not reasonably be expected of the date hereof of all Material Contracts. The Company has made available to have a Company Parent correct and complete copies of all Material Adverse EffectContracts, including any amendments thereto.
(i) each All the Material Contract is Contracts are valid and binding on the Company or a Company Subsidiary its applicable Subsidiary, enforceable against it in accordance with its terms, and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as neither the Company nor any of the date of this Agreementits Subsidiaries nor, to the knowledge Knowledge of the Company, no other any third party is in material breach or violation has materially violated any provision of, or default undermaterially failed to perform any obligation required under the provisions of, any Material Contract; , and (iii) neither the Company and the Company nor any of its Subsidiaries have not received any written claim of material default under any such Material Contract andnor, to the knowledge Knowledge of the Company, no fact any third party is in breach, or event exists that could give rise to has received written notice of any claim material breach, of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Emergent Group Inc/Ny), Merger Agreement (Universal Hospital Services Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth listed in Section 3.15(a4.12(a) of the Company Disclosure Letter (such Contracts collectivelyor included as an exhibit to the Company's Form 10-K for the fiscal year ended December 31, the “Material Contracts”)2014, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or bound byby any Contract:
(i) any Contract that is required to be filed by as an exhibit to the Company pursuant to Item 15 of Company's Annual Report on Form 10-K under pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the Exchange ActSEC;
(ii) any Contract relating pursuant to any credit, loan which or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of with respect to which the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company its Subsidiaries and any Company Subsidiary;
(iii) any joint venture Contractdirector, strategic cooperation or partnership arrangementsofficer, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock Affiliate of the Company or any of its wholly owned Subsidiaries (excluding in each case Parent) are parties or beneficiaries;
(iii) that obligates the Company or any of its Subsidiaries to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within 90 days without material penalty to the Company or any of its Subsidiaries, prohibits ;
(iv) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the pledging of the capital stock business of the Company or any wholly owned Company Subsidiary of its Subsidiaries, or prohibits that otherwise restricts the issuance lines of any guaranty business conducted by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment of its Subsidiaries or other contingent obligations or similar payments that is still the geographic area in effect and could reasonably be expected to result in payment of more than US$250,000, to or from which the Company or any Company Subsidiary, by or to any Third Partyof its Subsidiaries may conduct business;
(viiiv) that (A) is an agreement to which any Contract providing for the acquisition from another person Governmental Authority is a party or disposition under which any Governmental Authority has any rights or obligations or (B) is intended to another person, directly or indirectly benefit any Governmental Authority (by merger, license or otherwise), of assets or capital stock including any subcontract or other equity interests Contract between the Company or any of another person for aggregate consideration under such Contract (its Subsidiaries and any contractor or series of related Contracts) in excess of US$5,000,000subcontractor to any Governmental Authority);
(ixvi) which obligates the Company or any Contract that are license agreements material of its Subsidiaries to the business indemnify any past or present directors, officers, trustees, employees or agents of the Company and the Company Subsidiaries, taken as a whole, or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(vii) which constitutes Indebtedness of the Company or any of its Subsidiaries licenses with a principal amount outstanding as of the date hereof greater than $1,000,000;
(viii) that is an employment agreement with any executive officer of the Company or any of its Subsidiaries;
(ix) which requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties (including any Company Vessel) with a fair market value in Intellectual Property excess of $1,000,000, or licenses out Intellectual Property involves any pending or contemplated merger, consolidation or similar business combination transaction;
(x) that constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a hedging transaction;
(xi) that sets forth the operational terms of a material joint venture, partnership, limited liability company or strategic alliance of the Company or any of its Subsidiaries;
(xii) that constitutes a loan to any Person (other than a wholly owned Subsidiary of the Company) by the Company or any of its Subsidiaries in an amount in excess of $1,000,000;
(xiii) relating to any material ship-sales, memoranda of agreement or other vessel acquisition Contract for Newbuildings and secondhand vessels currently contracted for by the Company or other material Contracts with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, material supervision agreement, material plan verification services agreements, and future charters;
(xiv) pursuant to which a Company Vessel is leased or chartered by the Company to a Third Party;
(xv) that is a management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel involving annual payments in excess of $50,000, other than any such agreement or financial lease that is terminable by the Company Subsidiary or Company its Subsidiaries without fee or penalty upon 90 days' or less prior notice;
(xvi) that is a confidentiality or standstill agreement relating to any actual or potential Acquisition Proposal (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of businessConfidentiality Agreement); andor
(xxvii) that, if breached or terminated, could reasonably be expected to have a Company Material Adverse Effect. Each Contract described in clauses (i) through (xvii) above to which the Company or any Contract providing for any change of control its Subsidiaries is a party or similar payments by which it is bound is referred to herein as a third party in excess of US$1,000,000"Company Material Contract."
(b) Except as as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract is valid legal, valid, binding and binding enforceable on the Company or and each of its Subsidiaries that is a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementparty thereto and, to the knowledge of the Company, no each other party thereto, and is in material breach full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or violation ofother similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or default underin the aggregate, any have not had and would not reasonably be expected to have a Company Material Contract; (iii) Adverse Effect, the Company and each of its Subsidiaries has performed all obligations required to be performed by it prior to the date hereof under each Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. Neither the Company nor any of its Subsidiaries has received any claim, notice or event exists that could give rise to other communication (whether oral or written) of any claim of material violation or default under any Company Material Contract; and (iv) , except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Genco Shipping & Trading LTD), Merger Agreement (Baltic Trading LTD)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.18 (a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this AgreementSchedule, none of the Company or any Company Subsidiary Group Companies is a party to or bound by:by any Contract (which, in the aggregate, is required to be listed in Section 3.18 (a) of the Disclosure Schedule, being a "Material Contract"):
(i) Any contract with respect to any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actbroker, distributor, trader, manufacturer's representative, franchise, agency, continuing sales or purchase, promotion, market research, marketing, consulting or advertising;
(ii) any Contract Any contract relating to any credit, loan or facility arrangementindebtedness, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiarymortgage;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by Any contract under which the Target Company or any Company Subsidiary with of its Subsidiaries provides funds to any Third PartyPerson, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholeor makes any loan, capital contribution or other investment, or undertakes any liability or obligation;
(iv) all Contracts relating to the purchase or sale of Any contract with any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingGovernmental Authority;
(v) Any contract with any Contract Affiliated Person of the Target Company or any of its Subsidiaries;
(vi) Any employment or consultancy Contract, other than employment Contracts covered under paragraph (v), involving in the aggregate future or potential liability in excess of RMB200,000;
(vii) Any contract that limits, limits or purports to limit, limit the ability of the Target Company or any Company Subsidiary of its Subsidiaries to compete in any material line of business or with any person or entity Person or in any geographic geographical area or during any period of time, or the right of a Group Companies to sell or purchase from or engage any Person, or grants to the other Party or any third party "most favored nation" status or special discounts of any type;
(viviii) any Contract prohibiting Any contract that requires a consent or otherwise contains a provision relating to a "change of control" or would prohibit or delay the payment of dividends or distributions in respect consummation of the capital stock of transactions contemplated by this Agreement or the Ancillary Documents;
(ix) The leasing or leasing by the Target Company or any of its wholly owned Company Subsidiaries, prohibits or the pledging of the capital stock of the Company holding, use or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing provision for the acquisition from another person or disposition to another person, directly or indirectly use by any Person (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to than the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Target Company or any of its Subsidiaries) of (A) any real properties or (B) any tangible personal properties which involve, under clause (C), future or potential liabilities or accounts receivable in excess of the Company aggregate amount of RMB200,000;
(x) Any contract for the sale and purchase of real properties or tangible personal properties with a value in excess of RMB200,000;
(xi) Any contract giving or claiming indemnification from any Person in respect of any liability in respect of any present or former business of the Target Company, any of its Subsidiaries licenses or any predecessor Persons;
(xii) Any contract relating, in whole or in part, to any Intellectual Property rights;
(xiii) Any contract relating to a joint venture, partnership, merger, assets or licenses out Intellectual Property owned by stock purchase or divestiture relating to the Target Company or such any of its Subsidiaries;
(xiv) Any hedging, futures, options or other derivative contracts;
(xv) Any contract to purchase any debt or equity securities or other ownership interest of any Person or to issue or convert any obligation, instrument or security into debt or equity securities or other ownership interest of the Target Company Subsidiary or any of its Subsidiaries;
(xvi) Any settlement contract relating to any administrative or judicial proceedings in the past five years;
(xvii) Any contract that results in any Person holding a power of attorney relating to the Target Company or any of its Subsidiaries or any of their respective businesses in the Target Company or any of its Subsidiaries; and
(xviii) Any other than license agreements for commercially available software on standard terms contract whether or non-exclusive licenses granted not made in the ordinary course of business); and
, if (xA) any Contract providing for any change of control involves future or similar payments to a third party potential liabilities or accounts receivable (as the case may be) in excess of US$1,000,000RMB200,000 per annum or RMB400,000 during the current contract term; (B) has terms in excess of one year and cannot be cancelled by the Target Company or its Subsidiaries without payment of penalty or further payment and without 30 days' notice; or (C) is material to the business, operations, assets, financial condition, results of operations or prospects of the Group Companies taken as a whole.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is valid a legal, valid, binding and binding on the Company or a Company Subsidiary and enforceable agreement, is in full force and effect, subject to bankruptcyand, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; except as set forth in Section 3.18 (iiB) as of the date Disclosure Schedule, will continue in full force and effect on identical terms immediately following the Closing Date. None of this Agreementthe Target Company or any of its Subsidiaries, or to the knowledge Knowledge of the CompanySellers, no any other party party, is in material breach or violation of, (with or default under, any Material Contract; (iiiwithout notice or lapse of time or both) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material in default under any Material Contract; , nor has the Target Company or any of its Subsidiaries received any claim relating to such breach, violation or default. The Sellers have delivered or made available to the Buyer true and (iv) the Company has not receivedcomplete copies of all Material Contracts, as of the date of this Agreement, including any notice in writing from any person that such person intends to terminate any Material Contractamendments thereto.
Appears in 2 contracts
Sources: Share Purchase Agreement (Hainan Oriental Jiechuang Investment Partnership (Limited Partnership)), Share Purchase Agreement (Aesthetic Medical International Holdings Group LTD)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company)Agreement, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) Benefit Plans, agreements filed as exhibits to the Company SEC Reports Documents or (iii) as set forth in on the applicable subsection of Section 3.15(a3.18(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Schedule, as of the date hereof, neither Company nor any of this Agreement, none of the Company or any Company Subsidiary its Subsidiaries is a party to or bound by:
(i) any Contract that “material contract” (as such term is required to be filed by the Company pursuant to defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC);
(ii) any Contract relating to that (A) imposes any credit, loan restriction on the right or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset ability of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, its Subsidiaries to compete with any other than person or in any Indebtedness between geographic area or among any acquire or dispose of the securities of another person, or (B) contains an exclusivity or other clause that restricts the operations of the business of Company and any Company Subsidiaryits Subsidiaries in a material manner;
(iii) any joint venture Contractmortgage, strategic cooperation or partnership arrangementscredit agreement, note, debenture, indenture, security agreement, pledge, or other agreement involving a sharing or instrument evidencing indebtedness for borrowed money or any guarantee of profits, losses, costs or liabilities by the such indebtedness of Company or any Company Subsidiary with of its Subsidiaries in an amount in excess of $5,000,000, except any Third Party, in each case that is material to the business of the transaction among Company and the Company its wholly owned Subsidiaries taken as a wholeor among Company’s wholly owned Subsidiaries;
(iv) all Contracts relating to any executory Contract that provides for the purchase acquisition or sale disposition of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material assets, rights or obligations outstandingproperties with a value in excess of $5,000,000, except any transaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(v) any material joint venture, partnership or limited liability company agreement or other similar material Contract that limitsrelating to the formation, creation, operation, management or purports to limit, the ability control of the Company or any Company Subsidiary to compete in any material line of business joint venture, partnership or with limited liability company, other than any person such Contract solely between Company and its Subsidiaries or entity or in any geographic area or during any period of timeamong Company’s Subsidiaries;
(vi) any Contract prohibiting expressly limiting or restricting the payment ability of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company SubsidiariesSubsidiaries to make distributions or declare or pay dividends in respect of their capital stock, prohibits partnership interests, membership interests or other equity interests, as the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarycase may be;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the obligates Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person other than (A) any loan or capital contribution to, or investment in, (x) Company Subsidiaryor one of its Subsidiaries or (y) any person (other than an officer, director or employee of Company or any of its Subsidiaries unrelated to business travel and other business-related expenses in the ordinary course of business) that is less than $500,000 (with respect to capital contributions and investments) or $100,000 (with respect to loans) to such person, (B) extensions of credit to customers in the ordinary course of business and consistent with customary trade terms, or (C) advancement obligations under any indemnification agreement entered into by Company or to any Third Partyof its Subsidiaries;
(viii) any Contract providing pursuant to which Company or any of its Subsidiaries made aggregate payments of more than $20,000,000 during the 12-month period ended December 31, 2019, except (x) for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under any such Contract that may be cancelled by Company or any of its Subsidiaries upon notice of 90 days or less or (or series of related Contractsy) in excess of US$5,000,000for leases, subleases, licenses and occupancy agreements that relate to the Company Leased Real Property;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries generated annual revenues of more than $40,000,000 during the 12-month period ended December 31, 2019;
(x) any Contract that includes any affiliate of Company as a counterparty or third party beneficiary and that would be required to be disclosed under Item 404 of Regulation S-K of the SEC;
(xi) any Contract that contains “earn out” or other contingent payment obligations, that are reasonably expected to result in payments after the date hereof by Company or any of its Subsidiaries licenses in excess of $2,500,000;
(xii) any lease, sublease, license or occupancy agreement with respect to a Company Leased Real Property under which Company or any of its Subsidiaries is a lessee or sublessee and for which the annual base rental payments during the 12-month period ended December 31, 2019 exceeded $1,750,000, or by the terms of such lease or sublease, are reasonably expected to exceed $1,750,000 during the next 12 months; and
(xiii) any Contract relating to material Company Intellectual Property or licenses out Intellectual Property owned by the a material Company or such Company Subsidiary or Company Subsidiaries IT Asset, excluding (other than license agreements for commercially available software on standard terms or A) non-exclusive licenses to commercially available software with annual expenditures of less than $1,000,000 or (B) non-exclusive rights granted to customers and others in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Transaction Agreement (Delphi Technologies PLC), Transaction Agreement (Borgwarner Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company)Agreement, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) agreements filed as exhibits to the Company SEC Reports Documents or (iii) as set forth in Section 3.15(a) 3.18 of the Company Disclosure Letter Schedules, neither the Company nor any of its Subsidiaries is a party to or expressly bound by any Contract (excluding any Company Benefit Plan (other than with respect to clause (xiv) and (xv) below) or Lease) that:
(i) would constitute a “material contract” (as such Contracts collectively, the “Material Contracts”), as term is defined in Item 601(b)(10) of Regulation S-K of the date of this AgreementSecurities Act) with respect to the Company and its Subsidiaries, none taken as a whole;
(ii) contains restrictions on the right of the Company or any Company Subsidiary is a party of its Subsidiaries to engage in activities competitive with any Person or bound by:
(i) any Contract that is required to be filed by solicit suppliers anywhere in the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyworld, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case restrictions that is are not material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(iii) provides for the formation, creation, operation, management or control of any joint venture or partnership with a third party;
(iv) all Contracts relating to the purchase or sale of any Shares is an indenture, credit agreement, loan agreement, note, or other securities Contract providing for indebtedness for borrowed money of the Company or any of its Subsidiaries (other than indebtedness among the Company Subsidiary that has a fair market value or purchase price and/or any of more than US$1,000,000 under which there are material rights or obligations outstandingits Subsidiaries) in excess of $10 million;
(v) any is a settlement, conciliation or similar Contract that limits, or purports to limit, the ability of would require the Company or any of its Subsidiaries to pay consideration of more than $5 million after the date of this Agreement or that contains restrictions on the business and operations of the Company Subsidiary and its Subsidiaries that are material to compete in any material line the business of business or with any person or entity or in any geographic area or during any period of timethe Company and its Subsidiaries, taken as a whole;
(vi) (A) provides for the acquisition or disposition by the Company or any Contract prohibiting of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise) with a value in excess of $50 million or (B) pursuant to which the Company or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, in each case, under which the Company or any of its Subsidiaries has obligations remaining to be performed as of the date hereof;
(vii) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $5 million;
(viii) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, Subsidiaries or prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits of the issuance of any guaranty Company;
(ix) has resulted in payments by the Company or any wholly owned Company Subsidiaryof its Subsidiaries of more than $5 million in the aggregate for the prior fiscal year (other than Contracts subject to clause (v) above);
(viix) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar has resulted in payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partyof its Subsidiaries of more than $10 million in the aggregate for the prior fiscal year;
(viiixi) is a Collective Bargaining Agreement or similar agreement to which the Company or any Contract providing of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is bound;
(xii) is with (A) each of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest commercial vendors of the Company and its Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the acquisition from another person fiscal year ending December 31, 2021;
(xiii) provides for (A) indemnification of any officer, director or disposition employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to another personParent or (B) accelerated vesting in connection with a change of control (including as a result of any termination of employment following a change of control);
(xiv) is a Contract that is for the employment or engagement of any directors, directly officers, employees or indirectly (by merger, license independent contractors of the Company or otherwise), any of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) its Subsidiaries at annual base cash compensation in excess of US$5,000,000$400,000;
(ixxv) (A) is between the Company or any Contract of its Subsidiaries, on the one hand, and any director or officer of the Company or any of its Subsidiaries or any Person beneficially owning five percent or more of the outstanding shares of the Company Common Stock, on the other hand, except for any Company Benefit Plan or (B) that are would be required to be disclosed under Item 404 under Regulation S-K under the Securities Act; or
(xvi) (A) under which the Company or any of its Subsidiaries has granted or received an exclusive license agreements to any Intellectual Property, (B) otherwise materially restricting the Company or any of its Subsidiaries’ ability to use, enforce, or disclose any Company Intellectual Property, (C) under which the Company or any of its Subsidiaries has the right to use any Intellectual Property licensed from a third Person that is material to the business of the Company and the Company its Subsidiaries, taken as a whole, pursuant to (D) under which the Company or any of its Subsidiaries has granted a right to any Company Intellectual Property, which grant is material to the business of the Company Subsidiaries licenses in Intellectual Property and its Subsidiaries, taken as a whole, or licenses out Intellectual Property owned by (E) under which the Company or such any of its Subsidiaries has delivered, made available, licensed, or placed into escrow any source code owned by any of them that is material to the business of the Company Subsidiary or Company Subsidiaries and its Subsidiaries, taken as a whole, other than, with respect to each of (other than license agreements for commercially available software on standard terms or A) through (E), (1) non-exclusive licenses granted disclosure agreements entered into in the ordinary course of business); and
, (x2) nonexclusive, “off-the-shelf” software licenses granted by third parties to the Company or any of its Subsidiaries, (3) Open Source Licenses, (4) maintenance and support and professional services Contracts with the Company or its Subsidiaries, (5) non-exclusive licenses to customers, resellers, or distributors in the ordinary course of business and (6) agreements with employees and contractors in the ordinary course of business. Each Contract providing for any change of control or similar payments the type described in clauses (i) – (xvi) of this Section 3.18(a) is referred to herein as a third party in excess of US$1,000,000“Company Material Contract.”
(b) Except as True and correct copies of each Company Material Contract have been publicly filed prior to the date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on . To the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge Knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect, subject to the Enforceability Exceptions.
(c) To the Knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice in writing from or on behalf of any person Material Customer indicating that such person Material Customer intends to terminate or not renew, any Company Material Contract with such Material Customer.
(d) To the Knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material ContractVendor indicating that such Material Vendor intends to terminate, or not renew, any Company Material Contract with such Material Vendor.
Appears in 2 contracts
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.13(a) of the Company Disclosure Letter Schedule sets forth a list of all of the following Contracts to which any of the Company Group is a party or by which any of the Company Group or any of their respective assets is bound (such Contracts collectively, except for purchase orders and sales orders entered into in the “Material Contracts”), ordinary course of business) as of the date of this Agreementhereof (each, none of the a “Company or any Company Subsidiary is a party to or bound by:Material Contract”):
(i) any Contract that is required to be filed by limits, in any material respect, the freedom or ability of the Company pursuant Group to Item 15 conduct any line of Form 10-K under business, operate any aspect of the Exchange Actbusiness of the Company Group or compete with any Person in any geographical area or solicit or hire employees or that grants any customer or supplier of the Company Group exclusivity or a right to “most favored nation” pricing terms, or obligates the Company Group to purchase requirements or minimum amounts, excluding (i) geographical or field of use restrictions imposed by any Intellectual Property license agreements with respect to the use of the Intellectual Property subject thereto and (ii) reasonable limitations on use in connection with confidentiality, research, consulting, or other agreements entered into in the ordinary course of business consistent with past practice;
(ii) any Contract relating to for the sale of any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the assets of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, Group (other than any Indebtedness between or among any the sale of inventory in the Company and any Company Subsidiaryordinary course of business consistent with past practice) for consideration in excess of $50,000;
(iii) any Contract with a Company Significant Supplier or a Company Significant Customer;
(iv) any Contract related to any joint venture Contractventure, partnership, strategic cooperation alliance or partnership arrangementssimilar arrangement with another Person;
(v) any Contract relating to the acquisition or disposition (by merger, purchase of stock or other agreement involving a sharing assets or otherwise) by any of profits, losses, costs or liabilities by the Company Group of any operating business or material assets or the capital stock of any other Person that contains material ongoing obligations or Liabilities of the Company Subsidiary with Group;
(vi) any Third PartyContract relating to (A) the incurrence, assumption or guarantee of any Indebtedness or (B) imposing a Lien (other than a Permitted Lien) on any of the material assets or properties of any of the Company Group, in each case having a principal amount in excess of $50,000;
(vii) any Contract (other than a Benefit Plan), for the employment of any employee or natural person independent contractor of the Company Group providing services to any of the Company Group with annual base salary in excess of $100,000;
(viii) any Contract pursuant to which any of the Company Group grants to any Person or is granted by any Person any license, sublicense, right, consent or non-assertion under or with respect to any Intellectual Property, other than (A) Incidental Licenses and (B) non-exclusive licenses to customers granted in the ordinary course of business and consistent with past practices;
(ix) any other Contract, other than a Benefit Plan, that obligates any of the Company Group to pay, or that entitles any of the Company Group to receive, an amount in cash, goods, services or materials of $1,000,000 or more in any consecutive twelve (12)-month period that is not terminable without penalty upon less than ninety (90) days prior written notice by any of the Company Group;
(x) any Contract under which the Company Group is obligated to make any capital commitment or expenditure in excess of $100,000 individually or $1,000,000 in the aggregate;
(xi) any Related Party Agreement;
(xii) any Real Property Lease;
(xiii) any collective bargaining agreement or other Contract with a labor union;
(xiv) any Contract that is a lease of, or permits any third party to hold or operate, any tangible property (other than real property), owned or controlled by the Company Group, except for any Contract under which the aggregate annual rental payments do not exceed $100,000;
(xv) any Contract related to the agreement to settle or compromise any pending or threatened Action or investigation and under which any of the Company Group has continuing obligations;
(xvi) any Contract the primary purpose of which is to bind any of the Company Group to indemnify or assume liabilities of any other Person (including any D&O Indemnitee), with such obligation continuing after the date hereof, other than customary indemnification provisions in commercial Contracts entered into in the ordinary course of business consistent with past practice;
(xvii) any Contract granting to any Person a right of first refusal or right of first offer on the sale of any material part of any of the business, assets or properties of any of the Company Group;
(xviii) any Contract pursuant to which any of the Company Group has agreed to loan any Person any amount or otherwise make any investment in any other Person;
(xix) any Contract with any Governmental Authority; and
(xx) any Contract pursuant to which any of the Company Group may be obligated to pay or incur transaction fees and expenses in respect of this Agreement and the transactions contemplated by this Agreement, including those of all attorneys, accountants, actuaries, consultants, experts, investment bankers or other professionals, if any, engaged by or on behalf of the Company Group in respect of this Agreement and the transactions contemplated by this Agreement.
(b) Except as set forth on Section 3.13(b) of the Company Disclosure Schedule, (i) since January 1, 2021, none of the Company Group has received or been in possession of any written notice of any intention to terminate, repudiate or disclaim, or of any default or event that (with due notice or lapse of time or both) would constitute a default by any of the Company Group under any Company Material Contract, other than defaults that have been cured or waived in writing or would not reasonably be expected to be material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken Group as a whole, pursuant to which (ii) each Company Material Contract is a legal, valid and binding obligation of the Company Group, as applicable, and is in full force and effect (except to the extent subject to, and limited by, the Enforceability Exceptions), (iii) no material breach in or material default under any Company Material Contract by any of the Company Subsidiaries licenses in Intellectual Property Group exists (with or licenses out Intellectual Property owned by without the Company lapse of time or such Company Subsidiary the giving of notice, or Company Subsidiaries both), and (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in iv) to the ordinary course Knowledge of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse EffectCompany, (iA) each no other party to any Company Material Contract is valid and binding on (with or without the Company lapse of time or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws the giving of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation ofnotice, or default under, any Material Contract; (iiiboth) the Company and the Company Subsidiaries have not received any written claim in breach of material or in default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Company Material Contract; and (ivB) no event or circumstance has occurred that (with or without the lapse of time or the giving of notice, or both) would reasonably be expected to constitute a default or breach under any Company Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder. Company has made available to Parent true, correct and complete copies of each of the Company has not receivedMaterial Contracts, as of together with all amendments, modifications or supplements thereto, to the date of this Agreementextent such amendments, any notice modifications or supplements are in writing from any person that such person intends to terminate any Material ContractCompany’s possession.
Appears in 2 contracts
Sources: Merger Agreement (Lawson Products Inc/New/De/), Merger Agreement (Lawson Products Inc/New/De/)
Material Contracts. (a) Except for as otherwise disclosed in the Company SEC Reports, to the knowledge of the Company, Section 5.16 of the Company Disclosure Schedule contains a list of each contract to which the Company or a Company Subsidiary is a party that (i) this Agreement (and purports to limit, curtail or restrict the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which right of the Company or any Company Subsidiary (A) to engage or compete in any line of business in any geographic area or with any Person, or which requires exclusive referrals of business or requires the Company or any Company Subsidiary to offer specified products or services to their customers on a priority or exclusive basis or (B) to compete with any person or operate in any location, (ii) is a party as standstill or similar agreement restricting the Company from acquiring the securities of, soliciting proxies respecting, or affecting the control, of any Person, (iii) by its terms, purports to bind or otherwise limit, in any material respect, any Affiliate of the date Company (other than any individual or any Company Subsidiary) following the consummation of this Agreement the Transactions, (iv) pursuant to which material indebtedness for borrowed money may be incurred or is guaranteed by the Company or any Company Subsidiary, (v)(A) requires the Company or any Company Subsidiary to indemnify any other Person in any material respect or (B) obligates the Company or any Company Subsidiary to make any earn-out payments of a material amount based on future performance of an acquired business or assets, (vi) contains a “most favored nation” right or provision (or any similar right or provision) in favor of any Person (other than the Company or any of the Company Subsidiaries) or (vii) except as described in the preceding clauses (i) through (vi), is material to the Company’s business (such contracts and agreements, together with the “Contracts”material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act) filed as exhibits an exhibit to the Company SEC Reports or (iii) Reports, being collectively referred to herein as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Company Material Contracts”).
(b) Neither the Company nor any Company Subsidiary is and, as to the knowledge of the Company, no other party is, in breach or violation of, or in default under, any Company Material Contract. As of the date of this Agreement, none of the Company or any Company Subsidiary is a party to has received any written notice of default, termination or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K cancellation under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Material Contract individuallyand no event has occurred which would result in a material breach or violation of, other than any Indebtedness between or among any of the Company and a material default under, any Company Subsidiary;
Material Contract (iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business case, with or without notice or lapse of the time or both). Each Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid valid, binding and binding on the Company or a Company Subsidiary and enforceable, in full force and effectall material respects, subject to in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium moratorium, fraudulent transfer and similar Laws laws of general applicability relating to or affecting creditors’ rights, and to rights or by general equity principles; (ii) as of the date of this Agreementand is in full force and effect, in all material respects, with respect to the knowledge of the CompanyCompany or Company Subsidiaries, no other party is in material breach or violation ofas applicable, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise with respect to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractother parties thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Cnet Networks Inc), Merger Agreement (CBS Corp)
Material Contracts. (a) Except for (i) this Agreement (Agreement, the Plans and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)ESPP, as of the date of this Agreement, none neither the Company nor any Subsidiary of the Company or any Company Subsidiary is a party to or bound byany Contract:
(i) any Contract that is required to be filed by the Company in the Company SEC Reports as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange ActSecurities Act that has not been so filed;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness that (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company SubsidiaryA) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to materially limit, the ability of the Company or any Company Subsidiary of its Affiliates to compete in any material line of business or with any person or entity or in within any geographic area or during with any period of time;
Person or (viB) contains any Contract prohibiting the payment of dividends exclusivity or distributions in respect of the capital stock of similar provision binding upon the Company or any of its wholly owned Subsidiaries that is material to the Company’s business, taken as a whole;
(iii) relating to Indebtedness for borrowed money for a principal amount in excess of $1,000,000, other than Contracts among the Company or its Subsidiaries;
(iv) between the Company and any of its directors, officers or Affiliates (other than (x) Contracts not material to the conduct of the business of the Company and its Subsidiaries, prohibits or (y) any Contract solely between or among the pledging of Company or its Subsidiaries);
(v) that is a license, sublicense, assignment, option or other Contract relating to the capital stock of Company’s material Intellectual Property Rights, including any such Contract pursuant to which the Company or any wholly owned of its Subsidiaries is granted any right to use, is restricted in its rights to use or register or permits any other Person to use, enforce or register any Intellectual Property Rights of the Company Subsidiary (other than any enterprise software license or prohibits other license to use commercial off-the-shelf computer software under nondiscriminatory pricing terms or licenses contained in service contracts to the issuance extent the licenses contained therein are incidental to such contract, non-exclusive and granted in the ordinary course of business);
(vi) that provides for any guaranty by most favored nation provision or equivalent preferential pricing terms or similar obligations to which the Company or any wholly owned of its Affiliates is subject, which is material to the Company Subsidiaryand the its Subsidiaries;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect a purchase, sale or supply Contract that (x) contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements and could reasonably be expected to result in payment of (y) has more than US$250,000, to or from one year remaining in the Company or any Company Subsidiary, by or to any Third Partyterm of the Contract and requires in excess of $1,000,000 in remaining obligations;
(viii) any Contract providing for involving future payments, capital expenditures, performance of services or delivery of goods or materials to or by the Company and its Subsidiaries of an amount or value reasonably expected to exceed $1,000,000 in the aggregate during the 12 month period following the date hereof;
(ix) entered into during the past three years involving the acquisition from another person or disposition to another persondisposition, directly or indirectly (by merger, license merger or otherwise), of assets a business or capital stock or other equity interests of another person Person for aggregate consideration (in one or a series of related transactions) under such Contract (of $1,000,000 or series of related Contracts) in excess of US$5,000,000more;
(ixx) that is a collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(xi) that is a partnership or joint venture agreement or similar Contract or relates to an equity investment that are license agreements in each case is material to the business Company and its Subsidiaries;
(xii) that is for a lease, use or occupancy of real or personal property of the Company and or its Subsidiaries providing for annual rentals of $1,000,000 or more;
(xiii) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries or income or revenues related to any product of the Company or any of its Subsidiaries, taken as a whole, pursuant which is likely to involve the payment of consideration of more than $1,000,000 in the aggregate over the remaining term of such Contract;
(xiv) with any Governmental Entity to which the Company or any of its Subsidiaries is a party, other than individual Contracts involving aggregate consideration during the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by term of the Contract of less than $1,000,000;
(xv) under which the Company or such Company Subsidiary any of its Subsidiaries has advanced or Company Subsidiaries (other than license agreements for commercially available software on standard terms loaned any amount of money to any of its officers, directors, employees or non-exclusive licenses granted consultants, in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to each case with a third party principal amount in excess of US$1,000,000$1,000,000 and in each case has not been repaid prior to the date hereof; or
(xvi) that commits the Company or any of its Affiliates to enter into any of the foregoing. Each such Contract in clause (i) through clause (xvi) is referred to herein as a “Company Material Contract.”
(b) Except as would not reasonably be expected to have be material to the Acquired Companies, taken as a Company Material Adverse Effectwhole, (i) each Company Material Contract is valid and binding on the Company or a Company Subsidiary its Subsidiaries and in full force and effect, subject to bankruptcyexcept as enforceability may be limited by the Enforceability Exceptions, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementno Acquired Company, nor to the knowledge of the Company, no any other party to a Company Material Contract is in material breach or violation of, or default under, or has taken or failed to take any action which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Company Material Contract; , (iii) the Company and the Company Subsidiaries Acquired Companies have not received any written claim or notice of material default under any such Company Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, received any written notice in writing from any person that such person intends to terminate any Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Innoviva, Inc.), Merger Agreement (Entasis Therapeutics Holdings Inc.)
Material Contracts. (a) Except for (i) this Agreement (For all purposes of and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of under this Agreement, none of the Company or any Company Subsidiary is a party to or bound by“Material Contract” shall mean:
(i) any Contract agreement that is would be required to be filed by the Company as a “material contract” pursuant to Item 15 601(b)(10) of Form 10Regulation S-K under the Exchange Securities Act or that would be required to be disclosed under Item 404 of Regulations S-K under the Securities Act;
(ii) any employment or consulting Contract (in each case, under which the Company has continuing obligations as of the date hereof) with respect to any employee or consultant in the United States that either (A) is for a fixed term of employment or services (but in the case of consulting agreements, only if such fixed term exceeds 2 months) or (B) provides for severance or termination payments in an amount in excess of the Company’s standard severance policy;
(iii) any Contract (A) limiting the freedom or right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material Intellectual Property or to compete with any Person in any line of business or in any location, in any such case, in a manner that would be material to the Company and its Subsidiaries, taken as a whole, or (B) containing exclusivity obligations or restrictions or otherwise prohibiting or limiting the freedom or right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any Software, components, parts or subassemblies, or to exploit any material tangible or intangible property or assets, in any such case, in a manner that would be material to the Company and its Subsidiaries, taken as a whole;
(iv) any Contract (A) relating to the license, disposition or acquisition (directly or indirectly) by the Company or any creditof its Subsidiaries of a material amount of assets other than in the ordinary course of business consistent with past practice, loan (B) pursuant to which the Company or facility arrangementany of its Subsidiaries will acquire any material interest in any other Person, guarantee other business enterprise other than the Company’s Subsidiaries or Indebtedness any real property, or (C) for the acquisition or disposition of any business containing any profit sharing arrangements or “earn-out” arrangements, indemnification obligations or other contingent payment obligations;
(v) any Company Intellectual Property Agreements set forth in Section 4.15(b) of the Company Disclosure Letter;
(vi) any Contract that relates to the formation, creation, operation, management or control of any (A) joint venture or (B) partnership, collaboration, limited liability company, joint marketing, distribution or similar arrangement that, in the case of clause (B), is material to the Company and its Subsidiaries, taken as a whole, or pursuant to which the Company or any of its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(vii) any Contract or series of related Contracts for the purchase of materials, supplies, goods, services, equipment or other assets under which the Company and the Company’s Subsidiaries made payments of $1,000,000.00 or more during the twelve-month period ending on the Company Balance Sheet Date;
(viii) any sales, distribution, agency or other similar agreement providing for the sale by the Company or any of the Company’s Subsidiaries of materials, supplies, goods, services, equipment or other assets that is with one of the 50 largest customers of the Company and its Subsidiaries, or one of the 20 largest resellers of the Company and its Subsidiaries, in each case determined by revenues received by the Company and its Subsidiaries on a consolidated basis during the fiscal year ended March 31, 2010;
(ix) any agreement (including any “take-or-pay” or keepwell agreement) under which (A) any Person (other than the Company or any of the Company’s Subsidiaries) has directly or indirectly guaranteed any liabilities or obligations of the Company or any of the Company’s Subsidiaries or (B) the Company or any of the Company’s Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than the Company or any of the Company’s Subsidiaries), in each case of clauses (A) and (B), other than endorsements for the purpose of collection in the ordinary course of business;
(x) any Government Contract under which the Company and the Company’s Subsidiaries made or received payments of $1,000,000.00 or more during the twelve-month period ending on the Company Balance Sheet Date;
(xi) any Contract that involves or relates to indebtedness for borrowed money (whether or not incurred, assumed, guaranteed or secured by any asset asset) outside the ordinary course of business; and
(xii) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would have a Company Material Adverse Effect and is not disclosed pursuant to clauses (i) through (xi) above.
(b) Section 4.12(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging Subsidiaries is a party or is bound as of the capital stock date of this Agreement. As of the Company or any wholly owned Company Subsidiary or prohibits date hereof, true and complete copies of all Material Contracts (including all exhibits and schedules thereto) have been (i) publicly available in the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
Electronic Data Gathering, Analysis and Retrieval (vii▇▇▇▇▇) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business database of the Company and the Company Subsidiaries, taken as a whole, pursuant SEC or (ii) made available to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000Parent.
(bc) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Each Material Contract is valid and binding on the Company or a each such Subsidiary of the Company Subsidiary party thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject to enforceable against the Company or each such Subsidiary of the Company party thereto in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability laws affecting or relating to or affecting creditors’ rightsrights generally and (ii) is subject to general principles of equity, and neither the Company nor any of its Subsidiaries that is a party thereto, nor, to general equity principlesthe Knowledge of the Company, any other party thereto, is in material breach of, or material default under, any such Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a material breach or material default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto.
(d) With respect to each Government Contract to which a U.S. federal Governmental Authority is a party or that is a Material Contract, to the Knowledge of the Company, (i) all representations and certifications executed, acknowledged or set forth in or pertaining to such Governmental Contract were complete and correct in all material respects as of their effective date, and the Company and Company’s Subsidiaries, as applicable, have complied in all material respects with all such representations and certifications; (ii) as neither the United States government nor any prime contractor, subcontractor or other Person has notified the Company or any of the date Company’s Subsidiaries that the Company or any of this Agreementthe Company’s Subsidiaries has materially breached or materially violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract.
(e) To the knowledge Knowledge of the Company, no other party neither the Company nor any of the Company’s Subsidiaries nor any of their respective directors, officers or employees is in material breach or violation ofhas been under administrative, civil, or default undercriminal investigation, or indictment or audit by any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract to which a U.S. federal Governmental Authority is a party or that is a Material Contract; (iii) . Neither the Company and nor any of Company’s Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract to which a U.S. federal Governmental Authority is a party or that is a Material Contract. To the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge Knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) neither the Company has not received, as nor any of the date Company’s Subsidiaries nor any of this Agreementtheir respective directors, officers or employees has been suspended or debarred from doing business with any notice in writing from Governmental Authority or is, or at any person that such person intends to terminate time has been, the subject of a finding of non-responsibility or ineligibility for contracting with any Material ContractGovernmental Authority.
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Hewlett Packard Co)
Material Contracts. (a) Except for (i) this Agreement (and the All material Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary of their respective properties or assets is a party to or bound by:
(i) any Contract subject that is are required to be filed by as an exhibit to any Available Company SEC Document have been filed as an exhibit to such Available Company SEC Document (such filed Contracts, the "Filed Contracts"). Schedule 3.13(a) lists all Contracts, other than the Filed Contracts, to which Company pursuant to Item 15 or any of Form 10-K under its Subsidiaries is a party and which fall within any of the Exchange Act;
following categories (together with the Filed Contracts, the "Material Contracts"): (i) material Contracts not entered into in the ordinary course of business; (ii) any Contract relating to any creditjoint venture, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company partnership and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement like agreements involving a sharing of profits, losses, costs or liabilities by the liabilities; (iii) Real Property Leases; (iv) Contracts relating to any outstanding commitment for capital expenditures in excess of $100,000 or which provided for payments to or from Company or any Company Subsidiary with any Third Party, in each case that is material to excess of $100,000 in the business aggregate over the life of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
such Contract; (v) any Contract that limitsindentures, mortgages, promissory notes, loan agreements, guarantees, letter of credit or purports to limitother agreements, the ability instruments or Indebtedness of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits Subsidiaries or commitments for the pledging of borrowing or the capital stock of the lending by Company or any wholly owned Company Subsidiary of its Subsidiaries of amounts in excess of $50,000 or prohibits providing for the issuance creation of any guaranty by Lien upon any of the assets of Company or any wholly owned of its Subsidiaries; (vi) any non-competition agreement or any other agreement or obligation that purports to limit in any respect the manner in which, or the localities in which, the business of Company Subsidiary;
or the Subsidiaries may be conducted; (vii) any Contract providing for any indemnification, earn-out, installment that by its express terms would prohibit or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment materially delay the consummation of more than US$250,000, to or from the Company Merger or any Company Subsidiary, of the Transactions contemplated by or to any Third Party;
this Agreement; (viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
collective bargaining agreement; (ix) any Contract that are license agreements material Contracts pertaining to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements excluding Contracts for commercially available software on standard terms or nonoff-exclusive licenses granted in the-shelf software); and (x) any agreement for the sale of significant assets out of the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as All the Material Contracts are valid and in full force and effect, except to the extent they have previously expired or terminated in accordance with their terms and except for any invalidity or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of Company or any Subsidiary is in violation of or default (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, any Material Contract, except for violations, defaults, waivers or failures to enforce rights or benefits that individually or in the aggregate would not reasonable be expected to have a Material Adverse Effect. To the Knowledge of Company, no other party to any Material Contract is in breach thereof or default thereunder, except for breaches or defaults that individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect, (i) . Company has made available to Parent true and complete copies of each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effectContract, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in including all material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractamendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Cpac Inc), Merger Agreement (Cpac Inc)
Material Contracts. (a) Except for (iSection 2.13(a) this Agreement (of the Company Disclosure Schedule sets forth a complete and correct list of each of the following Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary of its Subsidiaries is a party as (each of the date of this Agreement (the “Contracts”) filed as exhibits Contracts and other documents required to the Company SEC Reports or (iii) as set forth be listed in Section 3.15(a2.13(a) of the Company Disclosure Letter (such Contracts collectivelySchedule, the a “Company Material ContractsContract”), ) as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byAgreement Date:
(i) any Contract that is required Contracts with the Company’s top five marketing and advertising partners based on cost in the 12-month period prior to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange ActAgreement Date;
(ii) All licenses pursuant to which any Contract relating Person is authorized to use any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyCompany-Owned IP Rights, other than any Indebtedness between Company-Owned IP Rights licensed to customers or among any marketing and advertising partners in the ordinary course of the Company and any Company Subsidiarybusiness;
(iii) any joint venture ContractContracts for the acquisition, strategic cooperation sale or partnership arrangementslease of material properties or material assets (by merger, purchase or sale of stock or assets or otherwise) other than for capital equipment in the ordinary course of business;
(iv) Loan or credit agreement, mortgage, indenture, note or other agreement involving a sharing Contract or instrument evidencing indebtedness for borrowed money (contingent or otherwise) or for the deferred purchase price of profits, losses, costs property or liabilities services by the Company or any Company Subsidiary with of its Subsidiaries, or any Third Party, in each case that Contract or instrument pursuant to which indebtedness for borrowed money (contingent or otherwise) or for the deferred purchase price of property or services may be incurred or is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of guaranteed by the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limitsits Subsidiaries, or purports to limit, any guarantees by third parties for the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock benefit of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging in each case having an outstanding principal amount in excess of the capital stock $100,000;
(v) Mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or material assets of the Company or any wholly owned Company Subsidiary or prohibits of its Subsidiaries other than for capital equipment in the issuance ordinary course of business;
(vi) Contracts containing a covenant expressly limiting in any guaranty by material respect the freedom of the Company or any wholly owned Company Subsidiaryof its Subsidiaries to engage in any business with any Person or in any geographic area or to compete with any Person;
(vii) severance or change in control Contracts (but only to the extent remaining payments are or could be owing by the Company);
(viii) any Contract providing for that gives rise to any indemnification, earn-out, installment payment or other contingent obligations benefit in excess of $100,000 as a result of the performance of this Agreement or similar payments that is still in effect and could reasonably be expected to result in payment any of the Transactions;
(ix) Contracts with a term of more than US$250,000six months which are not terminable by the Company upon less than 30 days’ notice without penalty and involve consideration in excess of $100,000 annually;
(x) Contracts to which a Governmental Authority is a party;
(xi) Contracts for the leases or subleases of real property to or by the Company or a Subsidiary, other than leases or subleases that do not involve aggregate payments in excess of $100,000 over the 12-month period commencing on the Agreement Date;
(xii) any settlement agreement of any Legal Proceeding since the Company Reference Date; and
(xiii) any other agreement (or group of related agreements) the performance of which requires aggregate payments to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for of its Subsidiaries after the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) Agreement Date in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries$250,000 annually, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms with marketing or non-exclusive licenses granted advertising partners entered into in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000business that are terminable by the Company upon less than 30 days’ notice without penalty.
(b) Except as has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on of the Company or a Company Subsidiary Material Contracts is, as of the Agreement Date, valid, binding and in full force and effecteffect and is enforceable in accordance with its terms by the Company or the applicable Subsidiary, subject to bankruptcythe General Enforceability Exceptions. Neither the Company nor the applicable Subsidiary is in default in any material respect under any Company Material Contract, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementnor, to the knowledge Knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute a default in any material respect thereunder by the Company or the applicable Subsidiary. As of the Agreement Date, to the Knowledge of the Company, (i) no other party to any Company Material Contract is in default, in any material respect, under any of the provisions, terms or conditions thereunder and (ii) no condition exists that with notice or lapse of time or both would constitute a default in any material respect by any such other party thereunder. As of the Agreement Date, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received written notice of (i) any termination or cancellation of any Company Material Contract or (ii) any past, present or future material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Company Material Contract, or granted to any third party any material rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract and, (it being understood and agreed that any breach or default that gives the other party a right to the knowledge of the Company, no fact termination shall be considered a material breach or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractdefault).
Appears in 2 contracts
Sources: Merger Agreement (Spark Networks SE), Agreement and Plan of Merger
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) 3.19 of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Schedule and except for Company Benefit Plans, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or bound by:
(i) any Contract that “material contract” (as such term is required to be filed by the Company pursuant to defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC);
(ii) any Contract relating to between the Company or any creditSubsidiary of the Company, loan on the one hand, and any officer, director or facility arrangement, guarantee or Indebtedness Affiliate (whether or not incurred, assumed, guaranteed or secured by any asset other than a wholly owned Subsidiary of the Company) of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any Subsidiary of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company Subsidiaryor any Subsidiary of the Company has an obligation to indemnify such officer, director, Affiliate or family member;
(iii) any joint venture ContractContract that imposes any restriction on the right or ability of the Company, strategic cooperation any of its Subsidiaries or partnership arrangementsany Affiliate of them to compete with any other person in any line of business or geographic region, or other agreement involving a sharing solicit any customer (or that following the Effective Time will restrict the right or ability of profits, losses, costs Parent or liabilities by the Company its Subsidiaries to engage in any line of business or compete in any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholegeographic area);
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of Contract that obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any Company Subsidiary that has third party on a fair market value preferential or purchase price of more than US$1,000,000 under exclusive basis or which there are material rights contains a “most favored nation” or obligations outstandingsimilar covenant;
(v) any acquisition or divestiture Contract or material licensing agreement that limits, or purports to limit, the ability of the Company contains material indemnities or any Company Subsidiary to compete in any material line of business “earnout” or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the other contingent payment of dividends or distributions in respect of the capital stock obligations that are outstanding obligations of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging Subsidiaries as of the capital stock date of the Company this Agreement;
(vi) any Collective Bargaining Agreement or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryother works council agreement;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected agreement relating to result in payment Indebtedness of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partyof its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(viii) any Contract providing for that grants any right of first refusal or right of first offer or similar right with respect to any assets, rights or properties of the acquisition from another person Company or disposition its Subsidiaries (A) for, or that would reasonably be expected to another personresult in, directly total consideration of more than $10,000,000 or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related ContractsB) with a fair market value in excess of US$5,000,000$10,000,000;
(ix) any Contract that provides for the acquisition or disposition by the Company or any of its Subsidiaries of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or a business (whether by merger, sale of stock or otherwise) that contain ongoing obligations that are license agreements material to the business of the Company and the Company Company’s Subsidiaries, taken as a whole;
(x) any joint venture, pursuant partnership or limited liability company agreement or other similar Contract relating to which the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(xi) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by case may be, (B) to make loans to the Company or such any of its Subsidiaries, or (C) to grant liens on the property of the Company Subsidiary or any of its Subsidiaries;
(xii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person, except for (A) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (B) extended payment terms for customers in the ordinary course of business, (C) prepayment of Taxes for repatriated employees of the Company and its Subsidiaries or (D) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $25,000,000 individually;
(xiii) any settlement agreement entered into since July 1, 2013 (A) with a Governmental Entity, (B) that requires the Company and its Subsidiaries to pay more than license agreements for commercially available software $25,000,000 after the date of this Agreement or (C) imposes any restrictions on standard terms the business of the Company or non-exclusive licenses granted its Subsidiaries;
(xiv) any Contract with a Top Customer, Top Distributor or Top Supplier (excluding purchase orders issued in the ordinary course of business); and;
(xxv) any Contract providing for that involved the payment of more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvi) any change Contract that involved the receipt of control more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or similar payments that is expected to result in the receipt of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvii) any Contract relating to the supply of any item used by the Company or a third party Subsidiary of the Company that is a sole source of supply of any raw material, component or service and under which the Company paid more than $5,000,000 to the relevant supplier in excess fiscal year 2016 or that is expected to result in the payment of US$1,000,000such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding purchase orders issued in the ordinary course of business);
(xviii) any material Government Contract that has not been closed out; or
(xix) any contract relating to the creation of any Lien (other than Permitted Liens) with respect to any material asset of the Company or any Subsidiary of the Company. All contracts of the types referred to in clauses (i) through (xix) above (whether or not set forth on Section 3.19 of the Company Disclosure Schedule), are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on Neither the Company or a Company nor any Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party Company is in material breach or violation of, of or default under, under the terms of any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise other party to any claim Company Material Contract is in breach of material or default 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 knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract; , in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and (iv) binding obligation of the Company has or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto (except in each case as enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally, and that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and is in full force and effect, in each case except as would not receivedreasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice in writing from of the intention of any person that such person intends other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material ContractContract prior to its stated expiration date, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) As of the date of this Agreement, no Top Supplier, Top Customer or Top Distributor has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice to the Company or any Subsidiary of the Company of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Linear Technology Corp /Ca/), Merger Agreement (Analog Devices Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as As of the date of this Agreement, none except for (i) this Agreement, (ii) the Company Employee Benefit Plans, (iii) contracts filed as an exhibit to or incorporated by reference in a Company SEC Document filed prior to the date hereof, (iv) contracts related to properties or operations that have been sold or otherwise disposed of or are in the process of being sold or otherwise disposed of to the extent such sales and/or dispositions have been disclosed in the Company SEC Reports, or (v) as set forth on Section 2.21(a) of the Company or Schedule, neither the Company nor any Company Subsidiary of its subsidiaries is a party to or bound byby any contract (whether written or oral) which is:
(iA) any Contract that a “material contract” (as such term is required to be filed by the Company pursuant to defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC);
(iiB) any Contract relating to any credit, loan or facility arrangementa loan, guarantee of indebtedness or Indebtedness credit agreement, note, bond, mortgage, indenture or other binding commitment (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness those between or among any of the Company and any Company Subsidiaryits subsidiaries) relating to indebtedness in an amount in excess of $5 million individually;
(iiiC) a contract, lease or license (including any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
seismic license agreements) (ivx) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its subsidiaries paid amounts in excess of $5 million individually within the 12 month period prior to the date of this Agreement or (y) that is material to the Company Subsidiaries licenses and its subsidiaries taken as a whole;
(D) a contract, which to the knowledge of the Company purports to materially limit the right of the Company or any of its affiliates to engage or compete in Intellectual Property any line of business in which the Company or licenses out Intellectual Property owned its subsidiaries is engaged or to compete with any person or operate in any location;
(E) a contract that creates a partnership or joint venture or similar arrangement with respect to any significant portion of the business of the Company and its subsidiaries taken as a whole; or
(F) 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 is subject involving future performance by the Company or such any of its subsidiaries which is material to the Company Subsidiary and its subsidiaries taken as a whole. All contracts of the type described in this Section 2.21(a) together with the contracts for the sale of Hydrocarbons produced from any of the Company’s or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted its subsidiaries’ properties described in the ordinary course Reserve Reports that are not terminable on 60 days’ notice and are set forth on Section 2.21(a) of business); and
(x) any Contract providing for any change of control or similar payments the Company Schedule, are referred to a third party in excess of US$1,000,000herein as the “Company Material Contracts”.
(b) Except Other than as a result of the expiration or termination of any Company Material Contract in accordance with its terms and except as would not reasonably be expected to have have, either individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is valid and binding on the Company or and any of its subsidiaries that is a Company Subsidiary party thereto, as applicable, and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and each of its subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Material Contract, and (iii) neither the Company Subsidiaries have not nor any of its subsidiaries has knowledge of, or has received notice of, the existence of any written claim event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of the Company or any of its subsidiaries or their counterparties under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Pogo Producing Co), Merger Agreement (Plains Exploration & Production Co)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) 3.12 of the Company Disclosure Letter (such sets forth a list of each of the following Contracts collectively, the “Material Contracts”)to which, as of the date of this Agreement, none the Company or any of its Subsidiaries is a party (each, a “Company Material Contract”):
(i) each Contract (A) not to (or otherwise restricting or limiting the ability of the Company or any Company Subsidiary is a party of its Subsidiaries to) compete in any line of business or geographic area or (B) to or bound by:
(i) any Contract that is required to be filed by restrict the ability of the Company pursuant or any of its Subsidiaries to Item 15 of Form 10-K under the Exchange Actconduct business in any geographic area;
(ii) each Contract (other than any Contract Company Benefit Plan) providing for or resulting in payments by the Company or any of its Subsidiaries that exceeded $250,000 since the Company Incorporation Date;
(iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets;
(iv) all material Contracts for the granting or receiving of a 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;
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to any creditindebtedness for borrowed money or the deferred purchase price of property (in either case, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or asset), except any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiaryagreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(iiivii) any joint venture Contract, strategic cooperation agreement for the disposition or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities acquisition by the Company or any Company Subsidiary of its Subsidiaries, with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock Subsidiaries (other than confidentiality obligations) remaining to be performed or material liabilities of the Company or any wholly owned Company Subsidiary or prohibits of its Subsidiaries continuing after the issuance date of this Agreement, of any guaranty by the Company material business or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or material amount of assets other contingent obligations or similar payments that is still than in effect and could reasonably be expected to result in payment the ordinary course of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partybusiness;
(viii) any Contract providing for an agreement with a (A) the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business top 10 customers of the Company and the Company its Subsidiaries, taken as a whole, pursuant to which as applicable, and (B) the Company or any top 10 suppliers of the Company Subsidiaries licenses and its Subsidiaries, taken as a whole, as applicable (in Intellectual Property each case measured by aggregate obligations paid or licenses out Intellectual Property owned by agreed to since the Company Company’s inception);
(ix) any agreement restricting or such Company Subsidiary limiting the payment of dividends or Company Subsidiaries (the making of distributions to stockholders, including intercompany dividends or distributions other than license agreements for commercially available software on standard terms such restrictions or non-exclusive licenses granted in the ordinary course of business); andlimitations that are required by applicable Law;
(x) any Contract providing 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 Company Disclosure Letter pursuant to another subsection of this Section 3.12(a), all material agreements with any change of control or similar payments to a third party in excess of US$1,000,000Governmental Authority.
(b) A true and complete copy of each Company Material Contract (including any amendments thereto) entered into prior to the date of this Agreement has been made available to Parent prior to the date of this 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 would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on neither the Company or a such Subsidiary nor, to the Knowledge of the Company, any other party thereto, is in breach of or default under any such Company Subsidiary and in full force and effectMaterial Contract, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, there are no material disputes with respect to the knowledge of the Company, no other party is in material breach or violation of, or default under, any such Company Material Contract; Contract and (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, no party under any Company Material Contract has given written notice in writing from any person that such person intends of its intent to terminate any or otherwise seek a material amendment to such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ikonics Corp), Merger Agreement (Ikonics Corp)
Material Contracts. (a) Except for (i) this Agreement (Section 4.11 of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of all Contracts contemplated to be entered into hereunder by of the Company), (ii) contracts, arrangements or understandings following types to which the Company or any Company Subsidiary is a party as or to which any of the date of this Agreement their respective assets or property are bound:
(the “Contracts”a) filed as exhibits any Contract pursuant to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of which the Company or any Company Subsidiary is a party has provided funds to or bound by:made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-or-pay contracts or keepwell agreements;
(b) any Contract with any Governmental Authority (other than any Statutory Plans) that involves an aggregate future or potential liability or payable, as the case may be, in excess of $350,000 or is otherwise material;
(c) any Contract with any Related Person of the Company (other than any Company Plans or Statutory Plans);
(d) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” that the Company would reasonably expect to prevent or delay the consummation of the transactions contemplated by this Agreement;
(e) any Contract pursuant to which the Company is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company), (i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
real property, or (ii) any Contract relating to any credittangible personal property and, loan in the case of clause (ii) that involves an aggregate future or facility arrangementpotential liability or receivable, guarantee or Indebtedness (whether or not incurredas the case may be, assumed, guaranteed or secured by any asset in excess of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary$100,000;
(iiif) any joint venture Contract, strategic cooperation Contract providing for indemnification or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities any guaranty by the Company or any Company Subsidiary with any Third Partythereof, in each case that is material to the business Company and its Subsidiaries, taken as a whole, other than (A) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (1) the Company or another wholly owned Subsidiary thereof or (2) any Subsidiary (other than a wholly owned Subsidiary) of the Company and that was entered into in the Ordinary Course of Business pursuant to or in connection with a customer Contract, or (B) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the Ordinary Course of Business;
(g) any Contract that contains any provision that requires the purchase of all or a majority of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company Subsidiaries and its Subsidiaries, taken as a whole;
(ivh) all Contracts any Contract relating to settlement or other final disposition of any Action since January 1, 2020;
(i) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or their respective business other than in the Ordinary Course of Business;
(j) any Contract for the purchase or sale of any Shares debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any Company Subsidiary;
(k) any hedging, futures, options or other derivative Contract;
(l) any mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case evidencing Indebtedness of the Company or any Company Subsidiary (other than any Company Plans or Statutory Plans, in each case, that has a fair market value provide severance or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingother termination-related payments);
(vm) any partnership, joint venture, limited liability company agreement or similar Contract relating to the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company (other than any Organizational Documents of the Company or the Company Subsidiaries);
(n) any Contract that limits, or purports to limit, materially limit or restrict the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock rights of the Company or any of its wholly owned Company SubsidiariesSubsidiaries (or, prohibits at any time after the pledging consummation of the capital stock First Merger or Second Merger, Parent or any of its Subsidiaries) (A) to engage in any line of business, (B) compete with any Person or solicit any client or customer, or (C) operate in any geographical location;
(o) 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 any wholly owned Company Subsidiary or prohibits the issuance of its Subsidiaries;
(p) any guaranty by Contract that obligates the Company or any wholly owned Company Subsidiaryof its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the First Merger or Second Merger will obligate Parent or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party;
(viiq) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from obligates the Company or any Company Subsidiary, by or of its Subsidiaries to make any Third Partycapital expenditures in any twelve month period in an amount in excess of $100,000 (other than purchasing activities in the Ordinary Course of Business);
(viiir) any Contract providing for relating to the future acquisition from another person or disposition to another persondisposition, directly or indirectly (by merger, license sale of stock, sale of assets, or otherwise), by the Company or any of its Subsidiaries of material operating assets (other than purchasing activities or inventory sales in the Ordinary Course of Business) or capital stock or other equity interests interest of another person Person (other than the Company or a Company Subsidiary), other than (i) acquisitions pursuant to budgeted capital expenditures in the Ordinary Course of Business or (ii) acquisitions or dispositions that do not individually have a value in excess of $500,000;
(s) any Collective Bargaining Agreement;
(t) any employment, severance, retention, change in control, bonus or other Contract with any current or former Service Provider (1) that provides for payment of any cash or other compensation or benefits in connection with the consummation of the transactions contemplated by this Agreement, other than any severance or termination payments and benefits, or (2) that expressly provides for the payment of severance or termination payments (other than (x) statutory severance benefits or termination payments or (y) only with respect to international offer letters or employment contracts, payments or benefits in lieu of notice) upon a termination of the applicable Service Provider’s employment;
(u) any IP Licenses; or
(v) any other Contract, other than purchase orders entered into in the Ordinary Course of Business, Company Plans and Statutory Plans, that by its terms calls for aggregate consideration payments or receipts by the Company and its Subsidiaries under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) more than $100,000 over any Contract twelve month period. Collectively, the Contracts that are license agreements material required to the business be listed on Section 4.11 of the Company and Disclosure Letter are referred to herein as the Company Subsidiaries, taken “Material Contracts”. Except as a whole, pursuant to which the Company or any set forth on Section 4.11 of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by Disclosure Letter, the Company and its Subsidiaries are not party to or such bound by any Material Contracts. The Company Subsidiary or Company Subsidiaries (other than license agreements for commercially has made available software on standard terms or non-exclusive licenses granted in the ordinary course to Parent correct and complete copies of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a all Company Material Adverse EffectContracts, (i) each including any amendments thereto. Each Material Contract is is, subject to the Equitable Exceptions, valid and binding on the Company or a Company Subsidiary and/or its Subsidiaries, as applicable, and to the Company’s Knowledge, each other party thereto and is in full force and effecteffect and will continue to be in full force and effect on identical terms immediately following the Closing Date. Neither the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementany Company Subsidiary nor, to the knowledge Knowledge of the Company, no any other party to any Material Contract is in material breach or violation of, or default under, and there does not exist any Material Contract; (iii) event which, with the giving of notice or the lapse of time, would constitute a breach or default by the Company, any Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract andSubsidiary or, to the knowledge Knowledge of the Company, no fact any other party under, any Material Contract, in each case except for such breaches, defaults and events as to which requisite waivers or event exists that could give rise consents have been obtained or which would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, nor has the Company or any of its Subsidiaries received any claim of material default under any Material Contract; and (iv) the Company has not receivedsuch breach, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractviolation or default.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Material Contracts. (a) Except for (iSchedule 4.13(a) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party sets forth as of the date hereof an accurate, correct and complete list of this Agreement (all Seller Contracts to which any of the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as descriptions set forth in Section 3.15(a) of the Company Disclosure Letter below apply (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange ActReal Property Leases, Personal Property Leases and IP Licenses;
(ii) any Any outstanding Contract relating to any credit, loan for capital expenditures or facility arrangement, guarantee for the purchase of goods or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset services for the Business in excess of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary$25,000;
(iii) Any joint venture, partnership, cooperative arrangement or any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement Contract involving a sharing of profits, losses, costs or liabilities by the Company or profits primarily relating to any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and Purchased Assets or the Company Subsidiaries taken as a wholeBusiness;
(iv) all Contracts relating to the purchase Any advertising Contract not terminable without payment or sale of any Shares penalty on thirty (30) days (or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingless) notice;
(v) Any Contract granting or receiving any right, title or interest in or to real property;
(vi) Any Contract with any Governmental Authority that limits, directly applies to Business or purports to limit, the ability any of the Company Purchased Assets;
(vii) Any Contract with respect to the discharge, storage or removal of effluent, waste or pollutants primarily relating to the Business or any Company Subsidiary of the Purchased Assets;
(viii) Any Contract relating to any license or royalty arrangement that directly applies to the Business or any of the Purchased Assets;
(ix) Any power of attorney, proxy or similar instrument;
(x) Any Contract for the manufacture, service or maintenance of any Seller Product;
(xi) Any requirement or output Contract with respect to the Seller Products;
(xii) Any Contract to indemnify any Person or to share in or contribute to the liability of any Person;
(xiii) Any Contract containing covenants not to compete in any material line of business or with any person or entity or Person in any geographic geographical area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material primarily relating to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company Business or any of the Company Subsidiaries licenses in Intellectual Property Purchased Assets or licenses out Intellectual Property owned which would be binding on Purchaser or the Purchased Subsidiary after the Closing;
(xiv) Any other Contract primarily relating to the Business or any of the Purchased Assets (including current Contracts with customers of the Business), which (i) provides for payment or performance by the Company either party thereto having an aggregate value of $50,000 or such Company Subsidiary more; (ii) is not terminable without payment or Company Subsidiaries penalty on thirty (other than license agreements for commercially available software on standard terms 30) days (or non-exclusive licenses granted in the ordinary course of business)less) notice; or (iii) is between, inter alia, an Affiliate and Seller; and
(xxv) any Any other Contract providing for any change that involves future payments, performance of control services or similar payments delivery of goods or materials to a third party or by Seller of an aggregate amount or value in excess of US$1,000,000$25,000 on an annual basis and primarily relating to the Business or any or the Purchased Assets or that otherwise is material to the Business.
(b) Except as would not reasonably be expected Seller has provided to have a Company Purchaser accurate, correct and complete copies of all Material Adverse EffectContracts, including all material amendments, supplements, modifications and waivers thereof.
(ic) each Each Material Contract is currently valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to and is enforceable by Seller in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating laws and equitable principles related to or affecting limiting creditors’ rightsrights generally and by general principles of equity.
(d) (i) Seller is not in default in a material respect, and to general equity principles; (ii) no party has notified Seller that it is in default in a material respect, under any Material Contract. No event has occurred as of the date of this Agreementhereof, and to the knowledge Knowledge of Seller, no circumstance or condition exists, that will be reasonably likely to (with or without notice or lapse of time): (A) result in a violation or breach of any of the Company, no other party is in material breach or violation of, or default under, provisions by Seller of any Material Contract; (iiiB) give any Person the Company and the Company Subsidiaries have not received right to declare a default or exercise any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default remedy under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.;
Appears in 2 contracts
Sources: Asset Purchase Agreement (Smith Micro Software Inc), Asset Purchase Agreement (Pc Tel Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the No Acquired Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:by any of the following (a Contract responsive to any of the following categories being hereinafter referred to as a “Material Contract”):
(i) other than as listed in 3.09(a)(i) of the Disclosure Schedule, any Contract that is required to be filed by lease (whether of real or personal property) providing for annual rentals of the Company pursuant to Item 15 equivalent of Form 10-K under the Exchange Act$20,000 or more;
(ii) other than as listed in 3.09(a)(ii) of the Disclosure Schedule, any Contract pursuant to which any Intellectual Property Right or Technology, including any Third Party IP, is licensed, sold, assigned or otherwise conveyed or provided to any Acquired Company or pursuant to which any Person has agreed not to enforce any Intellectual Property Right against any Acquired Company, other than Contracts for Generally Available Software;
(iii) any Contract pursuant to which any Intellectual Property Right or Technology is or has been licensed (whether or not such license is currently exercisable), sold, assigned or otherwise conveyed or provided to a third party by any Acquired Company, or pursuant to which any Acquired Company has agreed not to enforce any Intellectual Property Right against any third party.
(iv) any Contract imposing any restriction on any Acquired Company’s right or ability, or, after the Closing Date, the right or ability of Purchaser or any of its Affiliates (A) to compete in any line of business or with any Person or in any area or which would so limit the freedom of Purchaser or any of its Affiliates after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by any Acquired Company or any related Intellectual Property Right), (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) to develop or distribute any Intellectual Property Right or Technology;
(v) other than as listed in 3.09(a)(v) of the Disclosure Schedule, any partnership, joint venture or any sharing of revenues, profits, losses, costs or liabilities or any other similar Contract;
(vi) any Contract relating to the acquisition or disposition of any credit, loan or facility arrangement, guarantee or Indebtedness business (whether by merger, sale of stock, sale of assets or not otherwise) entered into since inception pursuant to which any Acquired Company has any current or future rights or obligations;
(vii) other than as listed in 3.09(a)(vii) of the Disclosure Schedule, any Contract relating to Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Partyasset);
(viii) any Contract providing for relating to the acquisition from another person acquisition, issuance or disposition to another person, directly or indirectly (by merger, license or otherwise), transfer of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000any securities;
(ix) any Contract that are license agreements material relating to the business of the Company and the Company Subsidiariesany interest rate, taken as a whole, pursuant to which the Company currency or any of the Company Subsidiaries licenses in Intellectual Property commodity derivatives or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); andhedging transaction;
(x) any Contract providing under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of any Acquired Company or (B) any Acquired Company has directly or indirectly guaranteed liabilities or obligations of any other Person (in each case other than endorsements for the purposes of collection in the ordinary course of business and intercompany guarantees among the Acquired Companies);
(xi) other than as listed in 3.09(a)(xi) of the Disclosure Schedule, any change Contract relating to the creation of control any Lien (other than Permitted Liens) with respect to any asset of any Acquired Company;
(xii) any Contract which contains any provisions requiring any Acquired Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or similar payments license of products or services in the ordinary course of business consistent with past practice);
(xiii) other than as listed in 3.09(a)(xiii) of the Disclosure Schedule, any Contract with any Related Person;
(xiv) any Contract with a Governmental Authority generating revenues or that has been executed within six months prior to the date of this Agreement;
(xv) any employment, severance, retention, change-in-control, bonus or other Contract with any current or former employee, officer, director, advisor or consultant of any Acquired Company (A) pursuant to which any Acquired Company has any current or future rights or obligations other than as a third party result of normal employment status, (B) that provides for the payment of any cash or other compensation or benefits upon the consummation of the Transaction, or (C) that otherwise restricts any Acquired Company’s ability to terminate the employment or engagement of such individual without penalty or liability (excluding any penalty or liability in excess respect of US$1,000,000the employee’s notice period and right not to be unfairly dismissed), other than, in each case, Contracts entered into in the ordinary course of business consistent with past practice with any advisor, consultant or employee of any Acquired Company;
(xvi) any Contract that cannot be provided to the Purchaser; and
(xvii) any other Contract not made in the ordinary course of business that is material to any Acquired Company.
(b) Except as would not reasonably be expected Subject to have a Company Material Adverse Effectthe limitations set forth in Section 5.03(b), (iSeller has made available to Purchaser accurate and complete copies of all written Contracts identified in Section 3.09(a) of the Disclosure Schedule, including all amendments thereto. Subject to the limitations set forth in Section 5.03(b), Section 3.09(a) of the Disclosure Schedule provides an accurate description of the material terms of each Material Contract identified in Section 3.09(a) of the Disclosure Schedule that is not in written form. Seller has notified Purchaser of any Contracts or portions thereof that Seller has withheld from Purchaser pursuant to Section 5.03(b) and has disclosed to Purchaser any material liabilities or obligations under any such Contracts, to the extent permitted thereunder.
(c) Each Material Contract is a valid and binding on agreement of the Acquired Company or a Company Subsidiary party thereto, and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementno Acquired Company is and, to the knowledge Knowledge of the CompanySeller, no other party thereto is in default or breach in any material respect under the terms of any such Contract, and, to the Knowledge of Seller, other than as set forth in Section 3.04 of the Disclosure Schedule regarding the consummation of the Transaction, 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, (i) result in a violation or breach of any of the provisions of any Material Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or performance of any grant or rights or other obligation under a Material Contract, or (iv) give any Person the right to cancel, terminate or modify any Material Contract.
(d) No Acquired Company has received any written notice or, to the Knowledge of Seller, any other communication regarding any violation or breach of, or default under, any Material Contract; .
(iiie) No Person is renegotiating, or has a right (or has asserted a right) pursuant to the Company and the Company Subsidiaries have not received terms of any written claim of material default under any such Material Contract andto renegotiate, to the knowledge of the Company, no fact any amount paid or event exists that could give rise payable to any claim of material default Acquired Company under any Material Contract; and (iv) the Company has not received, as Contract or any other material term or provision of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Material Contracts. (a) Except for (i) this Agreement (The Company has made available to Parent or its designee a complete and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the correct copy of each Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth Material Contract in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), effect as of the date of this Agreement, none each of which is listed in Section 3.18(a) of the Company Disclosure Letter or listed as an exhibit to the Company SEC Reports filed prior to the date hereof. As used in this Agreement, "Company Material Contract" means the Leases and each of the following Contracts to which the Company or any of the Company Subsidiaries is a party or by which any of their respective properties or assets are bound: (i) any Contract pursuant to which the Company or any of the Company Subsidiaries is reasonably likely to spend or is entitled to receive, in the aggregate, more than $3,000,000 during 2009 or 2010; (ii) any Contract that relates to any (x) Intellectual Property that is licensed by a third party to the Company or any Company Subsidiary is a party to or bound by:
(iy) any Contract Company Registered Intellectual Property that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities licensed by the Company or any Company Subsidiary with to any Third Partythird party, in each the case of clauses (x) and (y), that is material to the business Company and the Company Subsidiaries, taken as a whole; (iii) any Contract that provides for indemnification by the Company or any Company Subsidiaries to any Person, other than any Contract entered into in the Ordinary Course of Business or that is not material to the Company and the Company Subsidiaries Subsidiaries, taken as a whole;
; (iv) all Contracts relating to any Contract (other than an Employee Benefit Plan) that is between the purchase Company or sale any of the Company Subsidiaries and (x) any director or any employee of the Company with the title of Executive Vice President or above, or (y) any Affiliate of any Shares such Person identified in the preceding clause (x); (v) any Contract that is a loan or credit agreement, mortgage, promissory note, indenture or other securities of Contract evidencing Indebtedness for borrowed money owed by the Company or any Company Subsidiary that has a fair market value or purchase price in an amount in excess of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
$1.0 million; (vi) any non-competition or other Contract prohibiting the payment of dividends that prohibits or distributions in respect of the capital stock of otherwise restricts the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company Subsidiaries from freely engaging in the business presently conducted or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty proposed to be conducted by the Company or any wholly owned of the Company Subsidiary;
Subsidiaries anywhere in the world if such prohibition or restriction is or would reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole; (vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which and that contains any so called "most favored nation" provision or similar provisions requiring the Company or any of the Company Subsidiaries licenses in Intellectual Property to offer to a Person any terms or licenses out Intellectual Property owned conditions that are at least as favorable as those offered to one or more other Persons; (viii) any Contract that includes a guarantee of the obligations of any Person that is not the Company or a Company Subsidiary; (ix) any employment, severance, consulting or other Contract with an officer or former officer of the Company or any of the Company Subsidiaries which will require the Payment of amounts by the Company or such any of the Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted Subsidiaries, as applicable, after the date hereof in the ordinary course excess of business)$250,000 in any twelve month period; and
(x) any Contract providing for any change of control (other than a Stock Plan or a Contract entered into pursuant to the terms thereof) that contains a put, call or similar payments right pursuant to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on which the Company or a any Company Subsidiary would be required to purchase or sell, as applicable, any equity interests of any Person that have a fair market value or purchase price of more than $1.0 million; and (xi) any "material contract" (as such term is defined in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws Item 601(b)(10) of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as Regulation S-K of the date of this Agreement, SEC) with respect to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractSubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Sepracor Inc /De/)
Material Contracts. (a) Except for (ithis Agreement, Disclosure Schedule 4.14(a) sets forth, by reference to the applicable subsection of this Agreement (and the Contracts contemplated to be entered into hereunder by the CompanySection 4.14(a), (ii) contracts, arrangements or understandings all of the following Contracts to which the Company IWM or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement or by which it or its assets or properties are bound (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “IWM Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) Contracts with a stockholder or Affiliate thereof or any Contract that is required to be filed by the Company pursuant to Item 15 current or former officer, director, stockholder or Affiliate of Form 10-K under the Exchange ActIWM or any of its Subsidiaries;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset Contracts for the sale of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and assets of IWM or any Company Subsidiaryof its Subsidiaries other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its assets;
(iii) any Contracts for joint venture Contractventures, strategic cooperation or partnership alliances, partnerships, licensing arrangements, or other agreement involving a sharing of profits, losses, costs profits or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholeproprietary information;
(iv) all Contracts relating to the purchase or sale containing covenants of any Shares or other securities of the Company IWM or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary its Subsidiaries not to compete in any material line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or entity covenants of any other Person not to compete with IWM or any of its Subsidiaries in any line of business or in any geographic geographical area or during not to solicit or hire any period person with respect to employment;
(v) Contracts relating to the acquisition (by merger, purchase of timestock or assets or otherwise) by IWM or any of its Subsidiaries of any operating business or material assets or the capital stock of any other Person;
(vi) Contracts relating to the incurrence, assumption or guarantee of any Contract prohibiting the payment of dividends Indebtedness or distributions in respect imposing a Lien on any of the capital stock assets of the Company IWM or any of its wholly owned Company Subsidiaries, prohibits including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the pledging acquisition of the capital stock of the Company property, mortgages, pledge agreements, security agreements, or any wholly owned Company Subsidiary conditional sale or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiarytitle retention agreements;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected purchase Contracts giving rise to result in payment Liabilities of more than US$250,000, to or from the Company IWM or any Company Subsidiary, by or to any Third Party;of its Subsidiaries in excess of $1,000; Table of Contents
(viii) any Contract all Contracts providing for the acquisition from another person payments by or disposition to another person, directly IWM or indirectly (by merger, license or otherwise), any of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) its Subsidiaries in excess of US$5,000,000$1,000.00 in any fiscal year or $1,000 in the aggregate during the term thereof;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company all Contracts obligating IWM or any of its Subsidiaries to provide or obtain products of services for a period of one year or more or requiring IWM or any of its Subsidiaries to purchase or sell a stated portion of its requirements or outputs;
(x) Contracts under which IWM or any of its Subsidiaries has made advances or loans to any other Person;
(xi) Contracts providing for severance, retention, change in control or other similar payments;
(xii) Contracts for the Company Subsidiaries licenses employment of any individual on a full-time, part-time or consulting or other basis providing annual compensation in Intellectual Property excess of $50,000.00;
(xiii) material management Contracts and Contracts with independent contractors or licenses out Intellectual Property owned consultants (or similar arrangements) that are not cancelable without penalty or further payment and without more than thirty (30) days’ notice;
(xiv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by IWM or any of its Subsidiaries;
(xv) Contracts (or group of related Contracts) which involve the Company expenditure of more than $1,000 annually or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted $1,000 in the ordinary course of business)aggregate or require performance by any party more than one year from the date hereof; and
(xxvi) Contracts that are otherwise material to IWM or any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000its Subsidiaries.
(b) Except as would not reasonably be expected to have a Company Each of the IWM Material Adverse Effect, (i) each Material Contract Contracts is valid and binding on the Company or a Company Subsidiary and in full force and effecteffect and is the legal, valid and binding obligation of IWM or any of its Subsidiaries which is party thereto, and of the other parties thereto enforceable against each of them in accordance with its terms and, upon consummation of the transactions contemplated by this Agreement and subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of IWM’s obligations under this Agreement, to the knowledge shall continue in full force and effect without penalty or other adverse consequence. Neither IWM nor any of the Company, no other party its Subsidiaries is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such IWM Material Contract, nor is any other party to any IWM Material Contract andin breach of or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default of IWM or any of its Subsidiaries or any other party thereunder. IWM has delivered to the knowledge Cherry true, correct and complete copies of all of the CompanyIWM Material Contracts, no fact together with all amendments, modifications or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractsupplements thereto.
Appears in 1 contract
Sources: Merger Agreement (Institute for Wealth Holdings, Inc.)
Material Contracts. (a) Except for Other than any contract or amendment thereto filed as an exhibit to any Company SEC Report and except as disclosed in Section 5.17 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) this Agreement (and the Contracts contemplated any employment, severance, termination, consulting, or retirement contract providing for aggregate payments to be entered into hereunder by the Company)any Person in any calendar year in excess of $500,000, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts contract relating to the purchase or sale borrowing of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of money by the Company or any of its wholly owned Subsidiaries or the guarantee by the Company Subsidiariesor such Subsidiary of any such obligation (other than contracts evidencing trade payables), (iii) any contract which prohibits the pledging of the capital stock of or restricts, in any material respect, the Company or any wholly owned Company Subsidiary of its Subsidiaries from engaging in any business activities in any geographic area, line of business, or prohibits the issuance of customer segment or otherwise in competition with any guaranty by the Company or any wholly owned Company Subsidiary;
other Person, (viiiv) any Contract providing for any indemnificationcontract granting material exclusive rights or "most favored nation" status to the counterparty thereof, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viiiv) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, contract pursuant to which the Company or any of the Company its Subsidiaries licenses in have granted any material Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries rights to a third party (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted license agreements with customers, distributors or resellers in the ordinary course of business); and
, (xvi) any Contract providing for contract pursuant to which the Company or any change of control its Subsidiaries has received the right to use any material Intellectual Property (other than commercially-available, off-the-shelf software programs having a license fee of $100,000 or similar payments less), (vii) any indemnity agreement in favor of any Person, (viii) any contract relating to any discontinued operation or any assets or business sold or otherwise disposed of by the Company or its Subsidiaries within the three (3) year period ended on the date hereof, or (ix) any other contract or amendment thereto that would be required to be filed as an exhibit to a third party Form 10-K filed by the Company with the SEC on the date of this Agreement (such contracts described in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, clauses (i) through (ix) of this Section 5.17 being referred to collectively as the "Material Contracts"). With respect to each Material Contract is valid and binding on except as disclosed in Section 5.17 of the Company or a Company Subsidiary and Disclosure Schedule: (A) the contract is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (iiB) as neither the Company nor any of its Subsidiaries is in default thereunder, other than defaults which are not reasonably likely to have, individually or in the date aggregate, a Material Adverse Effect; (C) neither the Company nor any of this Agreementits Subsidiaries has repudiated or waived any material provision of any such contract; and (D) no other party to any such contract is, to the knowledge of the Company, no in default in any respect, other party is than defaults which are not reasonably likely to have, individually or in material breach or violation ofthe aggregate, a Material Adverse Effect, or default under, has repudiated or waived any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the provision thereunder. The Company has not received, as furnished or made available to Parent a true and correct copy of the date of this Agreement, any notice in writing from any person that such person intends to terminate any each Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as As of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or bound by:
by any of the following Contracts: (i) any Contract that is required relating to be filed indebtedness for borrowed money or any financial guaranty thereof in excess of $500,000, other than (A) indebtedness between and among the Company and its Subsidiaries and (B) financial guaranties by the Company pursuant of indebtedness owed by its Subsidiaries to Item 15 of Form 10-K under the Exchange Act;
third parties; (ii) any Contract relating that purports to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of prohibit the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries from competing in any material respect in any business line, other than with any Indebtedness between Person or among in any of the Company and any Company Subsidiary;
geographic area; (iii) any joint venture Contract that involves any exchange-traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument; (iv) any Contract, strategic cooperation other than Contracts for purchased transportation and Contracts with customers of the Company, that involved expenditures or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities guaranteed receipts by the Company or any Company Subsidiary with any Third Party, of its Subsidiaries of more than $500,000 in each case that the last fiscal year or is material expected to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase involve expenditures or sale of any Shares or other securities of guaranteed receipts by the Company or any Company Subsidiary that has a fair market value or purchase price of its Subsidiaries of more than US$1,000,000 under which there are material rights or obligations outstanding;
$500,000 in the current fiscal year; (v) any Contract that limitsinvolved, or purports to limitsince January 1, 2012, the ability of the Company acquisition or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another persondisposition, directly or indirectly (by merger, license merger or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such (other than acquisitions or dispositions of (A) assets in the ordinary course of business consistent with past practice, including acquisitions and dispositions of inventory or equipment or (B) assets, capital stock and other equity interests by and among the Company and its Subsidiaries); (vi) any Contract (other than this Agreement) that by its terms limits the payment of dividends or series other distributions by the Company or any of related Contractsits Subsidiaries; (vii) in excess any material joint venture or partnership Contract; (viii) any Contract for the lease of US$5,000,000;
real property material to the operation of the Company’s business; (ix) any Contract that are license agreements material to the business contains a put, call, right of the Company and the Company Subsidiariesfirst refusal or right of first negotiation, taken as a wholeright of first offer, redemption, repurchase or similar right pursuant to which the Company or any of its Subsidiaries would be required to, or have the option or right to, purchase or sell, as applicable, any equity interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person; (x) any material settlement agreement or similar Contract with a Governmental Entity or Order to which the Company or any of its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned is a party involving future performance by the Company or any of its Subsidiaries in any such case; (xi) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $500,000; (xii) any Contract containing covenants of the Company Subsidiary or any of its Subsidiaries to indemnify or hold harmless another Person, or make any “earn-out” or other contingent payment to another Person, in each case in connection with an acquisition or divestiture of any equity interests, businesses, lines of business, divisions, joint ventures or partnerships; (xiii) any Contract that (A) grants to any third Person any material exclusive license or supply or distribution agreement or other similar material exclusive rights or (B) grants to any third Person any “most favored nation” rights and requires aggregate future payments to the Company or any of its Subsidiaries in excess of $500,000 per annum; (xiv) any Contract, other than a Benefit Plan, which requires fixed payments by or to the Company or any of its Subsidiaries in excess of $500,000 per annum containing “change of control” or similar provisions; (xv) any Contract the failure to obtain consent in connection with the Merger and transactions thereby in respect of which, would be or reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole; (xvi) any Contract with the Company’s top ten (10) transportation providers (based on gross payments from January 1, 2012 through September 30, 2013) (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted rate quotes received in the ordinary course of business); and
and (xxvii) any Contract providing for any change deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of control or similar payments Regulation S-K of the SEC) (all contracts of the type described in this Section 3.1(p)(i) being referred to a third party in excess of US$1,000,000this Agreement as “Company Material Contracts”).
(bii) Except as would not be reasonably be expected likely to have have, individually or in the aggregate, a Company Material Adverse EffectChange, (iA) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party, is in material breach of or material default under the terms of any Company Material Contract; (B) each Company Material Contract is a valid and binding on obligation of the Company or a Company Subsidiary its Subsidiaries which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect, except that such enforcement may be subject to bankruptcythe Bankruptcy and Equity Exception; and (C) neither the Company nor any of its Subsidiaries has received any notice of termination or breach with respect to, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementand, to the knowledge Knowledge of the Company, no other party is in material breach or violation of, or default underhas threatened to terminate, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for (iSection 3.09(a) this Agreement (of the Disclosure Schedules lists each of the following contracts and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings other agreements to which the Company or any Company Subsidiary its Subsidiaries is a party as of (together with the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts Leases, collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) each agreement involving aggregate consideration in excess of $1,000,000 and either (x) requiring performance by any Contract that is required to party more than one year from the date hereof or (y) which cannot be filed cancelled by the Company pursuant to Item 15 of Form 10-K under the Exchange Actor its Subsidiaries, as applicable, without more than 120 days’ notice;
(ii) all agreements that relate to the acquisition or disposition of any Contract stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving consideration in excess of $1,000,000;
(a) except for agreements relating to any creditunsecured trade payables incurred in the ordinary course of business, loan or facility arrangement, guarantee or all agreements relating to Indebtedness (whether including, without limitation, guarantees) or not incurred, assumed, guaranteed or secured by the placing of an Encumbrance on any asset of the Company or any Company Subsidiaryof its Subsidiaries, in each case having an outstanding principal amount in excess of $1,000,000 and (b) of more than US$2,000,000 for each such Contract individually, other than any intercompany loans or similar Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries and any Company Subsidiary with any Third Party, not domiciled in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholeU.S.;
(iv) all Contracts relating to the purchase agreements between or sale of any Shares or other securities of among the Company or any of its Subsidiaries on the one hand and Seller or any Affiliate of Seller (other than the Company Subsidiary that has a fair market value or purchase price and its Subsidiaries) on the other hand, in each case involving consideration in excess of more than US$1,000,000 under which there are material rights or obligations outstanding$750,000;
(v) all collective bargaining agreements or agreements with any Contract labor organization, union or association;
(vi) all Company IP Agreements (excluding any agreements for commercially available off-the-shelf Software that limitsis not the subject of a negotiated agreement or customized for the Company and any of its Subsidiaries, and in each case for which the aggregate amounts paid or purports payable to limit, or by the Company or any of its Subsidiaries are less than $500,000);
(vii) all contracts and agreements that (A) limit in any material respect the ability of the Company or any Company Subsidiary of its Subsidiaries to compete in any material line of business or with any person or entity Person or in any geographic area or during any period of time;
time or (viB) any Contract prohibiting the payment contain exclusivity, minimum purchase or supply commitments involving purchases of dividends more than $250,000 per year, most-favored-nation, non-solicitation or distributions in respect of the capital stock of similar obligations or restrictions binding on the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company Subsidiaries or that would be binding on Buyer or any wholly owned Company Subsidiary or prohibits of its Affiliates after the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;Closing; and
(viii) all material settlement, conciliation or similar agreements with any Contract providing for the acquisition from another person Governmental Authority or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries is obligated to satisfy any material obligation after the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by date of this Agreement;
(ix) all agreements under which the Company or such Company Subsidiary any of its Subsidiaries has advanced or Company Subsidiaries loaned, or agreed to advance or loan, any Person (other than license agreements for commercially available software on standard terms the Company or non-exclusive licenses granted its Subsidiaries) any amount in the ordinary course excess of business)$100,000; and
(x) any Contract providing for any change of control all material joint venture, partnership, or similar payments to a third party in excess of US$1,000,000agreements or arrangements.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effectset forth on Section 3.09(b) of the Disclosure Schedules, (i) each Material Contract is in full force and effect and is a valid and binding on agreement of the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no as applicable, and neither the Company, any Subsidiary of the Company or, to Seller’s Knowledge, any other party thereto is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under the terms of, or has provided or received any notice of any intention to terminate, any such Material Contract andContract. Seller has made available to Buyer a true, to the knowledge correct and complete copy of each of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material ContractContracts.
Appears in 1 contract
Sources: Stock Purchase Agreement (Patterson Companies, Inc.)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a3.08(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)sets forth a true and complete list, as of the date hereof, of this Agreement, none all of the following Contracts (excluding any side letters, amendments or addenda thereto that are not material) to which the Transferred Company or any Company Subsidiary is of its Subsidiaries are a party to or by which any of their respective properties is bound byor which constitutes a Transferred Contract:
(i) Contracts (A) with respect to the issuance, sale, repurchase or redemption of any Contract that is equity interests of the Transferred Company or any of its Subsidiaries; or (B) containing a put, call or similar right pursuant to which the Transferred Company or any of its Subsidiaries may be required to be filed by the Company pursuant to Item 15 purchase or sell, as applicable, any equity interests or assets of Form 10-K under the Exchange Actany Person;
(ii) any Contract Contracts relating to the acquisition or disposition of any creditcapital stock or other equity interests, loan or facility arrangementany assets, guarantee business or Indebtedness product line of any Person (whether or not incurredeach, assumedan “Acquisition Agreement”), guaranteed or secured by any asset in each case for aggregate consideration in excess of $5,000,000 pursuant to which the Transferred Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries has or, other than after the assumption of any Indebtedness between Transferred Contract, Buyer or among any of the Company and its Subsidiaries will have, any Company Subsidiarymaterial actual or contingent liabilities or obligations;
(iii) Contracts relating to the formation, creation, governance or control of the Transferred Company or its Subsidiaries or the Business or any joint venture Contractventure, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by similar arrangement to which the Transferred Company or any Company Subsidiary with of its Subsidiaries is, or after the assumption of any Third PartyTransferred Contract, in each case that is material to the business Buyer or any of the Company and the Company its Subsidiaries taken as will be, a wholeparty;
(iv) all Contracts relating (A) materially limiting or purporting to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, materially limit the ability of the Company Transferred Company, any of its Subsidiaries, the Business or any Company Subsidiary of their respective Affiliates or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries, to engage or compete in any material line of business business, acquire any entity or compete with any person or entity Person or in any geographic area or during any period of time; (B) which grant “most favored nation” protections (other than such protections that benefit the Transferred Company or any of its Subsidiaries); or (C) which require the Transferred Company or any of its Subsidiaries or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries, to deal exclusively with any Person;
(v) (A) Real Property Leases under which fixed rental payments are in excess of $5,000,000 per annum; and (B) Contracts under which the Transferred Company or any of its Subsidiaries leases, or after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries will lease, personal property under which rental payments are in excess of $5,000,000 per annum;
(vi) (A) Contracts under which any Contract prohibiting Person (other than the payment of dividends Transferred Company or distributions in respect its Subsidiaries) has directly or indirectly guaranteed any liabilities or obligations of the capital stock of the Transferred Company or any of its wholly owned Company Subsidiaries or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries, prohibits (B) Contracts under which the Transferred Company or one of its Subsidiaries has guaranteed or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries will guarantee, any liabilities or obligations of any other Person (other than the Transferred Company or its Subsidiaries), or (C) any indenture, trust agreement, loan agreement, note or other Contract involving or evidencing Indebtedness, or that relates to the mortgaging, pledging or otherwise places a Lien on, any material assets of the capital stock of the Transferred Company or any wholly owned Company Subsidiary or prohibits of its Subsidiaries or, after the issuance assumption of any guaranty by the Company Transferred Contract, Buyer or any wholly owned Company Subsidiaryof its Subsidiaries;
(vii) (A) Contracts with any Team Partner or Top Distributor involving payments in excess of $5,000,000 per annum and (B) any Contract providing for any indemnificationwith Major League Baseball, earn-out, installment the National Basketball Association or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third PartyNational Hockey League;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related material Affiliate Contracts) in excess of US$5,000,000;
(ix) Contracts involving the resolution or settlement of any Contract that are license agreements material to actual or threatened Proceeding involving the business Transferred Company, any of its Subsidiaries or the Company and Business or, after the Company Subsidiariesassumption of any Transferred Contract, taken as a whole, pursuant to which the Company Buyer or any of the Company Subsidiaries licenses its Subsidiaries, involving outstanding payments in Intellectual Property excess of $5,000,000 per annum or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)any material ongoing obligations; and
(x) any Contract providing for (except any change Licensed IP Contracts entered into and made available to Buyer prior to the date hereof) not otherwise listed above which would reasonably be expected to require payments by, or result in receipts by, the Transferred Company or any of control its Subsidiaries or, after the assumption of any Transferred Contract, Buyer or similar payments any of its Subsidiaries, to a or from any third party in excess of US$1,000,000$5,000,000 per annum and which is not terminable by the Transferred Company, Buyer or any of their respective Subsidiaries (as applicable) on notice of 90 days or less without a premium or penalty.
(b) Except Each Contract listed or required to be listed on Section 3.08(a) of the Disclosure Letter, together with each Contract described in this Section 3.08(b) to which the Transferred Company or any of its Subsidiaries are a party or by which any of their respective properties is bound or which constitutes a Transferred Contract, is referred to herein as a “Material Contract”:
(i) each Acquisition Agreement (A) entered into at any time in the past two (2) years or (B) pursuant to which the Transferred Company or any of its Subsidiaries has or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries will have, any actual or contingent liabilities or obligations in excess of $2,000,000, in each case, which is not listed or required to be listed on Section 3.08(a) of the Disclosure Letter;
(ii) (A) Real Property Leases under which fixed rental payments are in excess of $2,000,000 per annum; and (B) Contracts under which the Transferred Company or any of its Subsidiaries leases, or after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries will lease, personal property under which rental payments are in excess of $2,000,000 per annum;
(iii) Contracts with any Team Partner or Top Distributor, involving payments in excess of $2,000,000 per annum;
(iv) Contracts involving the resolution or settlement of any actual or threatened Proceeding involving the Transferred Company, any of its Subsidiaries or the Business or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries, involving outstanding payments in excess of $2,000,000 per annum or any material ongoing obligations; and
(v) any Contract not otherwise listed above which would not reasonably be expected to have require payments by, or result in receipts by, the Transferred Company or any of its Subsidiaries or, after the assumption of any Transferred Contract, Buyer or any of its Subsidiaries, to or from any third party in excess of $2,000,000 per annum and which is not terminable by the Transferred Company, Buyer or any of their respective Subsidiaries (as applicable) on notice of 90 days or less without a Company Material Adverse Effect, premium or penalty.
(ic) A true and complete copy of each Material Contract (excluding any side letters, amendments or addenda thereto that are not material) has been made available to Buyer. Subject to bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to creditors’ rights generally, each Material Contract (and each Contract entered into after the date hereof that would have been a Material Contract if entered into prior to the date hereof (each, an “Additional Material Contract”)) is valid and (or, if entered into after the date hereof, will be) valid, binding on the Company or a Company Subsidiary and in full force and effecteffect with respect to the Transferred Company or its Subsidiary party thereto (or, subject to bankruptcyin the case of Transferred Contracts, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to Seller or affecting creditors’ rights, and to general equity principles; (iiits Subsidiary party thereto) as of the date of this Agreementand, to the knowledge of Seller, the Company, no other party thereto. None of the Transferred Company or its Subsidiaries (or, in the case of Transferred Contracts, Seller or its Subsidiary party thereto) is in material default under any Material Contract or Additional Material Contract. Except as would not, individually or in the aggregate, have a Material Adverse Effect, to the knowledge of Seller, none of the other parties to any Material Contract or Additional Material Contract is in default thereunder. Except as would not, individually or in the aggregate, have a Material Adverse Effect, none of Seller, the Transferred Company nor any of their respective Subsidiaries has received written notice (i) alleging a breach or violation of, or default under, any Material Contract or Additional Material Contract or (ii) of a party’s intention to cancel or otherwise terminate or not renew any Material Contract or Additional Material Contract; (iii) , and no event has occurred and no circumstances exist that, with or without the Company and lapse of time or the Company Subsidiaries have not received any written claim giving of material default under notice or both, would reasonably be expected to result in or permit any such Material Contract andbreach, to the knowledge default, cancellation, termination or non-renewal.
(d) Section 3.08(d) of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not receivedDisclosure Letter sets forth, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contracta true and complete list of all of the Shared Contracts.
Appears in 1 contract
Sources: Equity Purchase Agreement (Sinclair Broadcast Group Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth disclosed in Section 3.15(a) 3.15 of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Letter, as of the date of this Agreement, (i) neither the Company nor any of its Subsidiaries is a party to, and (ii) none of the Company, any of its Subsidiaries or any of the Company Assets are bound by (collectively, the Contracts of the type described in clauses (a) through (o) below are referred to herein as, the “Material Contracts”):
(a) any “material contract” (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K);
(b) any Contract containing a covenant (i) prohibiting the Company or any of its Subsidiaries from competing with any Person in any material line of business, (ii) prohibiting the Company or any of its Subsidiaries from engaging in any material line of business or levying a fine, charge or other payment for doing so, (iii) containing and limiting the right of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company of its Subsidiaries pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to “most favored nation” or “exclusivity” provisions, in each case other than any creditsuch Contracts that may be cancelled without material liability to, loan or facility arrangementmaterial ongoing obligations of, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any of its Subsidiaries upon notice of thirty (30) days or less, or (iv) that is a right of first refusal or right of first offer for any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of Asset material to the Company and any Company Subsidiaryits Subsidiaries taken as a whole;
(iiic) any limited liability company agreement, joint venture Contract, strategic cooperation or partnership arrangements, or other similar agreement involving a sharing or arrangement relating to the formation, creation, operation, management or control of profits, losses, costs any partnership or liabilities by the Company or any Company Subsidiary with any Third Party, in each case joint venture that is material to the business of the Company and or any of its Subsidiaries, other than any such limited liability company, partnership or joint venture that is a Subsidiary of the Company Subsidiaries taken as a wholeCompany;
(ivd) all Contracts relating to Leases;
(e) any Contract under which (i) any Person (other than the purchase Company or sale any of any Shares its Subsidiaries) has directly or other securities indirectly guaranteed Liabilities of the Company or any of its Subsidiaries or (ii) the Company or any Subsidiary that has a fair market value directly or purchase price indirectly guaranteed Liabilities of more any Person (other than US$1,000,000 under the Company or any Subsidiary) (in each case of (i) and (ii), which there are material rights or obligations outstandingguarantee obligation exceeds $250,000, other than, in each case, endorsements for the purpose of collection in the ordinary course of business);
(vf) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money, extension of credit or other indebtedness, in each case in excess of $250,000, other than (A) accounts receivables and payables in the ordinary course of business, (B) pursuant to or arising in connection with the Company’s existing credit facilities which are filed as exhibits to the Company’s most recent Form 10-K and (C) loans to wholly-owned Subsidiaries of the Company in the ordinary course of business;
(g) any Contract providing for the payment, increase or vesting of any material benefits or compensation in connection with the Merger;
(h) any Contract that limits, or purports to limit, the ability of obligates the Company or any of its Subsidiaries to make any future capital commitment or expenditure (including pursuant to any joint venture) in excess of $1,000,000 and that is not terminable by the Company Subsidiary or its Subsidiaries upon notice of thirty (30) days or less without penalty or liability to compete in any material line of business the Company or with any person or entity or in any geographic area or during any period of timeits Subsidiaries;
(vii) any Contract prohibiting (other than among consolidated Subsidiaries of the Company) relating to any interest rate, currency or commodity derivatives or hedging transactions involving an amount in excess of $250,000;
(j) any Contract under which the Company or the applicable Subsidiary, directly or indirectly, has agreed to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person that will be outstanding after the date hereof (other than the Company or any of its Subsidiaries and other than extensions of trade credit in the ordinary course of business), in any such case which, individually, is in excess of $250,000;
(k) any Contract that is a settlement, conciliation or similar agreement that materially limits the operations of the Company and its Subsidiaries (or will so limit Parent or any of its Affiliates after the Closing);
(l) any Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary of its Subsidiaries, or prohibits the issuance of guarantees by any guaranty by Subsidiary of the Company;
(m) any Contract with vendors or suppliers to or distributors for the Company or any wholly owned Company Subsidiaryof its Subsidiaries which requires any minimum amount of purchases or sales in excess of $250,000 over a period specified therein, or which provides for any exclusive rights for such vendor, supplier or distributor;
(viin) any voting, shareholders or registration rights agreement; and
(o) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from requires the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the future acquisition from another person Person or future disposition to another person, directly or indirectly (by merger, license or otherwise), Person of assets or capital stock or other equity interests interest of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) Person and any other Contract that are license agreements material relates to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant an acquisition or similar transaction which contain indemnities or “earn-out” obligations with respect to which the Company or any of the Company Subsidiaries licenses its Subsidiaries, in Intellectual Property or licenses out Intellectual Property owned by the Company or any such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted case, that remain in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to effect and have a third party value in excess of US$1,000,000.
(b) $250,000. Except as has not had and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, : (i) each Material Contract is is, subject to the Enforceability Exceptions, a valid and binding on agreement of the Company or a Company its applicable Subsidiary and, to the Knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable against the Company or its Subsidiary and, subject to bankruptcythe Knowledge of the Company, insolvencyeach other party thereto, fraudulent transferin accordance with its terms, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as none of the date of this AgreementCompany, its applicable Subsidiary or, to the knowledge Knowledge of the Company, any other party thereto, is in breach of or default under any such Material Contract, (iii) to the Knowledge of the Company, no other party is in material breach or violation of, or default under, to any Material Contract; (iii) Contract has committed or failed to perform any act under and no event has occurred which, with or without notice, lapse of time or both, would constitute a default, require consent or result in the Company and the Company Subsidiaries have not received any written claim loss of a material default under any such Material Contract and, to the knowledge of the Company, no fact benefit or event exists that could give rise to any claim right of material termination, amendment, acceleration or cancellation, under the provisions of such Material Contract, and (iv) neither the Company nor any of its Subsidiaries has received written notice from any other party to a Material Contract of the existence of any event, or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract; and (iv) the . The Company has not received, made available to Parent true and complete copies of all Material Contracts in effect as of the date of this Agreementhereof, including any notice in writing from any person that such person intends to terminate any Material Contractmaterial amendments thereto.
Appears in 1 contract
Sources: Merger Agreement (Stein Mart Inc)
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company)Agreement, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a4.17(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)sets forth a true and complete list, as of the date of this Agreement, none of and the Company or any Company Subsidiary is a party Acquired Companies have made available to or bound byParent true and complete copies, of:
(i) each Contract to which any Contract member of the Acquired Company Group is a party that is required (A) restricts the ability of any member of the Acquired Company Group to be filed by compete in any business or with any Person in any geographical area, (B) requires any member of the Acquired Company pursuant Group to Item 15 conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of Form 10-K under the Exchange Actany third party;
(ii) each Contract under which any member of the Acquired Company Group licenses Intellectual Property from or to any third party (other than (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of business), except for such licenses and sublicenses that are not material to the Acquired Company Group, taken as a whole;
(iii) any Contract pursuant to which any member of the Acquired Company Group will acquire any material ownership interest in any other Person or other business enterprise other than any Acquired Company Subsidiary, in each case, with a value greater than $1,000,000 after the date of this Agreement;
(iv) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by any credit, loan or facility arrangement, guarantee or Indebtedness member of the Acquired Company Group (whether or not incurred, assumed, guaranteed or secured by any asset asset) in excess of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually$1,000,000, other than any Indebtedness agreements solely between or among any the members of the Acquired Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingGroup;
(v) any each Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timefor a Derivative Transaction;
(vi) each Contract (including any Contract prohibiting the payment of dividends or distributions in respect Company Real Property Lease) to which any member of the capital stock Acquired Company Group is a party that provides for annual payments, receipts or expenditures in excess of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary$1,000,000;
(vii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which any member of the Acquired Company Group will, in either case, have any material obligations after the date of this Agreement;
(viii) each (A) Labor Agreement respecting Business Employees; and (B) Contract with a Management Company providing for the engagement of Business Employees by any indemnification, earn-out, installment or other contingent obligations or similar payments member of the Acquired Company Group that is still in effect and could would reasonably be expected to result in payment annual payments by the members of more than US$250,000, to or from the Acquired Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) Group in excess of US$5,000,000$1,000,000;
(ix) any Contract that are license agreements material (A) contains “earn out” or other contingent payment obligations, (B) guarantees any obligations of another Person or (C) contains indemnity or similar obligations, in each case, that would reasonably be expected to result in annual payments by or to any member of the Acquired Company Group in excess of $1,000,000;
(x) all Contracts relating to the business pending acquisition, swap, exchange, sale or other disposition of (or option to purchase, acquire, swap, exchange, sell or dispose of) any of the assets or properties of any member of the Acquired Company Group (including any Oil and the Company SubsidiariesGas Properties but excluding purchases and sales of Hydrocarbons), taken as a whole, pursuant to for which the aggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $1,000,000;
(xi) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract (excluding joint operating agreements) that would reasonably be expected to require any member of the Acquired Company Group to make expenditures in excess of $1,000,000 in any one calendar year period;
(xii) any Contract that contains a “take-or-pay” clause or any similar prepayment obligation, minimum volume commitment, capacity reservation fees or forward sale arrangement or obligation that otherwise guarantee or commit volumes of Hydrocarbons from any member of the Acquired Company Subsidiaries licenses in Intellectual Property Group’s Oil and Gas Properties at some future time without then or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)thereafter receiving full payment therefor; and
(xxiii) any Contract providing for the purchase or sale by any change Acquired Company or any Acquired Company Subsidiaries of control Hydrocarbons, or related to Hydrocarbons or produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending or similar payments midstream services (each, a “Company Marketing Contract”) that (A) has a remaining term of greater than 90 days and does not allow any member of the Acquired Company Group to a third party terminate it without penalty to any member of the Acquired Company Group within 90 days, (B) which would reasonably be expected to involve volumes in excess of US$1,000,000500 barrels of liquid Hydrocarbons per day or 1,500 MMcf of gas per day (in each case, calculated on a yearly average basis) or (C) that contains acreage dedications of more than 1,000 acres. Each such Contract described in clauses (i) through (xiii) above is referred to herein as a “Company Specified Contract.”
(b) Except As of the date of this Agreement, each of the Company Specified Contracts is valid, binding and enforceable on the applicable member of the Acquired Company Group, as the case may be, and, to the Knowledge of the Acquired Company Group, each other party thereto, and is in full force and effect except (i) for such failures to be valid, binding or enforceable or to be in full force and effect as would not reasonably be expected expected, individually or in the aggregate, to have be material to the Acquired Company Group, taken as a whole, or that would impair, hinder, or delay any member of the Acquired Company Material Adverse Effect, (i) each Material Contract is valid Group’s ability to perform its obligations under this Agreement and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) insofar as such enforceability may be limited by Creditors’ Rights. As of the date of this Agreement, to the knowledge Knowledge of the CompanyAcquired Company Group, there is no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Company Specified Contract andby any member of the Acquired Company Group or any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by any member of the Acquired Company Group or any other party thereto, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the knowledge Acquired Company Group, taken as a whole, or that would impair, hinder, or delay any member of the Company, no fact or event exists that could give rise Acquired Company Group’s ability to any claim of material default perform its obligations under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for Section 4.14(a) of the Company Disclosure Schedule lists each of the following Contracts (iother than the Company Benefit Plans) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings that is currently in effect to which the Company or any Company Subsidiary is a party or by which it is bound as of the date of this Agreement (the “Contracts”) filed as exhibits to each, together with the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Benefit Plans, a “Company Disclosure Letter (such Contracts Material Contract” and collectively, the “Company Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by the Company pursuant to Item 15 indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Form 10-K under the Exchange ActDebt or agreement providing for Debt;
(ii) any Contract relating containing a covenant not to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, compete restricting the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(iii) any Contract which creates a partnership or joint venture or similar arrangement;
(iv) each Lease;
(v) any stockholders, investors rights or similar Contracts;
(vi) any Contract prohibiting the payment of dividends collective bargaining or distributions in respect of the capital stock of the Company other similar labor or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryunion Contracts;
(vii) any Contract providing relating to the acquisition, transfer, use, development, sharing or license of any Intellectual Property, other than confidentiality agreements, employment agreements, consulting agreements, material transfer agreements, evaluation agreements, clinical trial agreements, off-the-shelf, shrink-wrap, or click-wrap licenses and/or other licenses for any indemnificationcommercially available software with annual license fees under $50,000, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected Contracts with the Company’s customers pursuant to result in payment of more than US$250,000, which such customers are granted the right to or from use the Company or any Company Subsidiary, by or to any Third PartySoftware in the ordinary course of the Business;
(viii) any Contract providing for Contracts, other than Contracts made in connection with this Agreement, relating to (i) the acquisition from another person disposition of the Business or disposition to another person, directly or indirectly (by merger, license or otherwise), of any assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted sales of inventory in the ordinary course of business); and, (ii) the purchase or sale or transfer of any outstanding Company Common Stock, (iii) any merger, consolidation or business combination involving the Company, or (iv) restructuring or sale of the Company, its assets or the Business;
(ix) any 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;
(x) any Contract providing 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 (in each case other than endorsements for the purposes of collection in the ordinary course of business consistent with past practice);
(xi) any change agreements which purport to bind Affiliates of control or similar the Company to any material obligation;
(xii) any Contract explicitly requiring payments to a third party by the Company in excess of US$1,000,000$150,000 in the current fiscal year;
(xiii) any Contract with a Governmental Authority that the Company reasonably expects to result in payments in excess of $150,000 in any twelve (12) month period after the Closing Date;
(xiv) any Contract explicitly providing for receipts by the Company in excess of $300,000 in the current fiscal year;
(xv) all Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Company, or income or revenues, where such payments are expected to exceed $150,000 in the twelve (12) month period following the date hereof; and
(xvi) all Contracts with Major Customers or Major Suppliers.
(b) Except as would not reasonably be expected to have a Company Material Adverse EffectNeither the Company, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, nor to the knowledge Knowledge of the Company, no any other party to any Company Material Contract, is in material breach of or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Company Material Contract and, to the knowledge Knowledge of the Company, no fact event has occurred that (with or event exists that could 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 provisions of any Company Material Contract, (ii) give rise any Person the right to any claim of declare a material default or exercise any remedy under any Company Material Contract; and , (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 receivedreceived any written notice or claim of any breach or default from the counterparty to any Company Material Contract. Each Company Material Contract is in full force and effect and is valid, as 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 Contract have been made available to Parent prior to the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in on Section 3.15(a3.14(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Letter, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to to, or bound by:, any of the following (each, a “Company Material Contract”):
(i) any Contract that is required to be filed by the Company pursuant to a “material contract” as such term is defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActAct (other than any Company Plan);
(ii) any material Contract relating to any credit, loan Indebtedness for borrowed money or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset financial guaranty thereof for an amount in excess of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually$10,000,000, other than any Indebtedness between or (A) Contracts among any of the Company and/or its wholly owned Subsidiaries and any Company Subsidiary(B) financial guarantees entered into in the ordinary course of business consistent with past practice;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that (A) limits, or purports to limit, the ability of the Company or any Company Subsidiary of its Affiliates to compete in any material line of business or with any person or entity or in within any geographic area or during with any period Person (other than Contracts with such restrictions that are not material to the conduct of timethe business of the Company and its Subsidiaries taken as a whole), (B) contains any material exclusivity or similar provision, or (C) in any material respect limits the ability of the Company or its Affiliates to hire or solicit for hire for employment any individual or group engaged in business competitive with the business of the Company and its Subsidiaries in any material respect;
(iv) (A) any Contract between the Company and any of its Affiliates (other than (x) immaterial Contracts entered into in the ordinary course of business consistent with past practice, or (y) any Contract solely between or among the Company and/or its wholly owned Subsidiaries) and (B) any contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(v) any material license, sublicense, assignment, option or other Contract relating to Company Intellectual Property, including any such material Contract pursuant to which the Company or any of its Subsidiaries is granted any right to use, is restricted in its rights to use or register or permits any other Person to use, enforce or register any Company Intellectual Property, but in each case excluding any enterprise software license or other license to use commercial off-the-shelf computer software under nondiscriminatory pricing terms, licenses contained in service contracts to the extent the licenses contained therein are incidental to such contract, non-exclusive and granted in the ordinary course of business or any other Contract that is not material to the Company and its Subsidiaries, taken as a whole;
(vi) any Contract prohibiting the payment of dividends that provides for any most favored nation provision or distributions in respect of the capital stock of equivalent preferential pricing terms or similar obligations to which the Company or any of its wholly owned Company SubsidiariesAffiliates is subject or a beneficiary thereof, prohibits the pledging of the capital stock of which is material to the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryand its Subsidiaries taken as a whole;
(vii) any purchase, sale or supply Contract providing for any indemnificationthat (x) contains volume requirements or commitments, earn-out, installment exclusive or other contingent obligations preferred purchasing arrangements or similar payments that is still in effect promotional requirements and could reasonably be expected to result in payment of (y) has more than US$250,000, to or from one year remaining in the Company or any Company Subsidiary, by or to any Third Partyterm of the Contract and requires in excess of $10,000,000 in remaining obligations;
(viii) any Contract providing for involving future payments, performance of services or delivery of goods or materials to or by the Company and its Subsidiaries of an amount or value reasonably expected to exceed $10,000,000 in the aggregate during the twelve (12) month period following the date hereof;
(ix) any material Contract with (A) any of the Company’s top 5 multichannel video programming distributors (based on number of subscribers during the 2016 fiscal year) or (B) any of the Company’s other multichannel video programming distributors under which the Company had more than 7,500,000 subscribers during the 2016 fiscal year, if any;
(x) any material inboard or outbound freight and shipping Contract pursuant to which the Company made payments of more than $10,000,000 during the 2016 fiscal year;
(xi) any Contract entered into after January 1, 2016 involving the acquisition from another person or disposition to another persondisposition, directly or indirectly (by merger, license merger or otherwise), of assets a business or capital stock or other equity interests of another person Person for aggregate consideration (in one or a series of related transactions) under such Contract (of $10,000,000 or series of related Contracts) in excess of US$5,000,000more;
(ixxii) any collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(xiii) any Contract that are license agreements is a partnership or joint venture agreement or similar Contract that in each case is material to the business of the Company and the Company its Subsidiaries, taken as a whole, pursuant to which ; or
(xiv) any Contract that commits the Company or any of its Affiliates to enter into any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000foregoing.
(b) Except The Company has made available to Parent prior to the date hereof true, correct and complete copies of all Company Material Contracts.
(c) Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to a Company Material Contract, is in breach or violation of, or in default under, any Company Material Contract, (i) with respect to either the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party to a Company Material Contract, no event has occurred or circumstance exists which would reasonably be expected to result in a breach or violation of, or a default under, any Company Material Contract (in each case, with or without notice or lapse of time or both), and (ii) each Company Material Contract is valid and binding on each of the Company and its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at equity or law), and is in full force and effect with respect to each of the Company and its Subsidiaries, as applicable, and, to the Knowledge of the Company each other party thereto, in the case of each of the foregoing, other than as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in on Section 3.15(a3.17(a) of the Company Disclosure Letter (such Contracts collectively, and excluding any of the “Material Contracts”)Real Property Leases, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to to, and neither the Company nor any of its Subsidiaries (or any property or asset thereof) is bound by:, any of the following (each, a “Company Material Contract”):
(i) any Contract that is required to be filed by the Company pursuant to a “material contract” (as such term is defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange Securities Act);
(ii) any Contract (A) relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of Subsidiaries (including the Company Credit Agreement) or any wholly owned Company Subsidiary or prohibits the issuance guarantee of Indebtedness of any guaranty Person (other than solely between or among the Company and its Subsidiaries), (B) securing any Indebtedness through any Encumbrance or (C) otherwise creating an Encumbrance, in each case where such Indebtedness or the Liabilities securing such other Encumbrance exceed $250,000 individually or $500,000 in the aggregate for all such Contracts;
(iii) any Restrictive Contract;
(iv) any joint venture, partnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of, or investment by the Company or any wholly owned of its Subsidiaries in, any joint venture, partnership or limited liability company, other than any such agreements or arrangements solely between or among the Company Subsidiaryand/or its Subsidiaries;
(v) any collective bargaining agreement or other Contract to or with any labor union or other employee representative of a group of employees;
(vi) any Related Party Contract;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company its Subsidiaries (A) in any transaction or series of related transactions, has an option, right or obligation to purchase any other business or portion thereof on an ongoing basis (including by purchasing the assets or capital stock of another Person, other than license agreements for commercially available software on standard terms or non-exclusive licenses granted the purchase of merchandise inventory in the ordinary course of businessbusiness consistent with past practice), in each case with an aggregate fair market value (or for aggregate consideration, including assumption of Indebtedness) exceeding $200,000, (B) in any transaction or series of related transactions, purchased any such business or portion thereof with an aggregate value exceeding (or for aggregate consideration, including assumption of Indebtedness, exceeding) $200,000 and continues to have any ongoing obligations (including obligations under any shareholder agreement), or (C) without limitation of clause (B), has an obligation to make any earn-out payments based on future performance of an acquired business or assets;
(viii) any Contract that (A) obligates the Company or any of its Subsidiaries to make a loan or capital contribution to, or investment in excess of $250,000 in, any Person (other than loans to the Company or any of its Subsidiaries) or (B) on a stand-alone basis obligates the Company or any of its Subsidiaries to provide indemnification or a guarantee that would reasonably be expected to result in payments in excess of $250,000; andTable of Contents
(ix) any Contract that (A) grants to any Person a right of first refusal, right of first offer, option or similar preferential right to purchase any of the Company’s or any of its Subsidiaries’ capital stock or assets, (B) obligates the Company or any of its Subsidiaries to sell to any Person or Persons (or pursuant to which the Company or any of its Subsidiaries sold to any Person or Persons and continues to have any ongoing obligations) any capital stock or assets, other than (x) upon exercise of Company Equity Awards set forth on Section 3.2(c) of the Company Disclosure Letter or (y) the sale of merchandise inventory in the ordinary course of business consistent with past practice, or (C) obligates the Company or any of its Subsidiaries to sell, assign, or otherwise transfer or dispose of to any Person or Persons (or pursuant to which the Company or any of its Subsidiaries sold, assigned, or otherwise transferred or disposed of to any Person or Persons and continues to have any ongoing obligations), in any transaction or series of related transactions, any assets, property or business having an aggregate value exceeding (or for consideration, including assumption of Indebtedness, exceeding) $50,000, except for the sale of merchandise inventory in the ordinary course of business consistent with past practice;
(x) any Contract providing that contains any rights of exclusivity granted by the Company or any of its Subsidiaries to any Person (other than to the Company or any of its Subsidiaries);
(xi) any Contract that, as its primary purpose, grants to the Company or any of its Subsidiaries any right to use, exploit or practice any Intellectual Property (except for any change of control or similar COTS Licenses) that by its terms calls for aggregate payments to a third party or by the Company or any of its Subsidiaries;
(xii) any Contract that, as its primary purpose, (A) provides for the development, modification, design, invention, production, acquisition, purchase, formulation or creation of any Intellectual Property or (B) grants to any Person (other than the Company or any of its Subsidiaries) any right to use, exploit or practice any Owned Intellectual Property;
(xiii) any Contract that Company reasonably anticipates requiring aggregate payments to or by the Company or any of its Subsidiaries in excess of US$1,000,000.$750,000, payable from March 4, 2018 to February 28, 2019;
(bxiv) Except as would not reasonably be expected any employment or consulting Contract (in each case with respect to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on which the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws any of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) its Subsidiaries has continuing obligations as of the date of this Agreement) with any current or former (A) officer of the Company or any of its Subsidiaries, to (B) member of the knowledge Board of Directors of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iiiC) employee of the Company and the Company or any of its Subsidiaries have providing for an annual base salary or payment in excess of $350,000;
(xv) any Contract with any agent, distributor or sales representative (A) involving annual aggregate consideration in excess of $350,000 or (B) that is not received terminable on thirty (30) days’ or less notice without penalty or payment of any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.termination fee;
Appears in 1 contract
Material Contracts. (a) Except for (iSection 2.17(a) this Agreement (of the Company Disclosure Schedule sets forth a complete and correct list of all Contracts of the Contracts contemplated to be entered into hereunder by following nature in effect as of the Company), (ii) contracts, arrangements or understandings date hereof to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to or by which the Company SEC Reports or (iii) as set forth in Section 3.15(a) any of its Subsidiaries, or any of their respective properties or assets, is otherwise bound other than Contracts solely among the Company Disclosure Letter and its Subsidiaries (such Contracts each a “Material Contract” and collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by in respect of the Company’s and its Subsidiaries’ businesses evidencing Indebtedness of the Company pursuant to Item 15 or any of Form 10-K under its Subsidiaries for borrowed money or the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness deferred purchase price of property (whether or not incurred, assumed, guaranteed or secured by any asset asset) in excess of $1,000,000;
(ii) any Contract pursuant to which the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries has provided funds to, or made any loan, capital contribution or other investment in, or assumed, guaranteed or agreed to act as a surety with respect to, any Indebtedness of, any Person, other than any Indebtedness between or among any of the Company and any Company Subsidiaryor its Subsidiaries;
(iii) any joint venture Contract, strategic cooperation Contract for the issuance of any debt or partnership arrangementsequity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other agreement involving a sharing of profitsownership interests of, losses, costs or liabilities by the Company or any Company Subsidiary with of its Subsidiaries, or for the purchase of any Third Partydebt or equity security or other ownership interest of any Person, in each case that is material to the business of the Company other than Employee Plans and the Company Subsidiaries taken as a wholeany offer letters for at will employment;
(iv) all Contracts relating any Contract that purports to limit, curtail or restrict the purchase or sale of any Shares or other securities ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business, make sales to any Person in any manner, use or enforce any material Intellectual Property owned by or exclusively licensed to the Company Subsidiary or any of its Subsidiaries (other than customary limitations in license agreements with respect to the use of licensed materials, ordinary course exclusive distribution agreements, or any other Contract identified in Section 2.17(a) of the Company Disclosure Schedule under any other provision of this Section 2.17(a)), or hire or solicit any Person in any manner (other than agreements which may contain covenants not to solicit employees of third parties entered into in the ordinary course of business with clients, customers, vendors or third parties or customary non-disclosure agreements), or that has a fair market value grants the other party or purchase price any third Person “most favored nation” or similar status or any right of more than US$1,000,000 under which there are material rights first refusal, first notice or obligations outstandingfirst negotiation;
(v) any Contract that limitsrequires a third party consent to, or purports otherwise contains a right of a third party to limitterminate, under a provision relating to a “change of control” that would prohibit or delay the ability consummation of the Company transactions contemplated by this Agreement or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of timethe other Transaction Documents;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof), (A) any real property or (B) any tangible personal property and, in the case of clause (B), that involves an aggregate future payment or receivable, as the case may be, in excess of $250,000 or more on an annual basis;
(vii) any executory Contract for the sale or purchase of any real property in an amount in excess of $250,000 or, other than Company Products in the ordinary course of business consistent with past practice, for the sale or purchase of any tangible personal property in an amount in excess of $500,000;
(viii) any Contract obligating the Company or any of its Subsidiaries licenses to indemnify or hold harmless any Person for an amount in Intellectual Property excess of the greater of (A) $500,000 and (B) the aggregate consideration paid or licenses out owed to or by the Company under such Contract during the 12-month period immediately preceding the indemnification claim;
(ix) any Contract not otherwise required to be listed under another subsection of this Section 2.17 that includes any option to purchase or covenant not to bring claims of infringement or misappropriation of, in each case, any Intellectual Property owned by or exclusively licensed to the Company or such Company Subsidiary or Company Subsidiaries any of its Subsidiaries;
(x) any Contract (other than license agreements Employee Plans) with any Related Party (other than with employees) of the Company or any of its Subsidiaries providing for commercially available software aggregate consideration in excess of $200,000;
(xi) any written (A) employment Contract with a U.S. employee providing for base compensation of $200,000 or more on standard terms an annual basis or non(y) consulting, accounting, attorney or investment banking firm Contract providing for payment of $250,000 or more on an annual basis, other than those that have a term of less than one (1) year or are terminable without penalty upon sixty (60) days’ notice or less;
(xii) any reselling, sales, marketing, merchandising or distribution Contract providing for payments to or by the Company in excess of $5,000,000;
(xiii) any joint venture or partnership, merger, asset or share purchase or divestiture Contract relating to the Company or any of its Subsidiaries pursuant to which any obligations of the Company or its Subsidiaries remain outstanding;
(xiv) any Inbound License Agreements;
(xv) any Outbound License Agreements;
(xvi) any collective bargaining, works council, or similar labor union or employee-exclusive licenses granted representative Contract representing any employee of the Company or its Subsidiaries;
(xvii) any Contract relating to settlement of any administrative or judicial proceedings other than (A) releases immaterial in nature or amount entered into with former employees or current or former independent contractors of the Company or any of the Company’s Subsidiaries in the ordinary course of business, (B) settlement agreements for cash and/or the provision of products and/or services only (which have been paid or provided) that do not exceed $250,000 individually as to any such settlement or (C) settlement agreements under which none of the Company or any of the Company’s Subsidiaries have any continuing material obligations, Liabilities or rights (excluding releases);
(xviii) any Government Contract for aggregate consideration in excess of $100,000; and
(xxix) any other Contract providing for any change not of control a category or similar type described in the foregoing clauses (i)-(xviii) or otherwise identified in Section 2.17(a) of the Company Disclosure Schedule, whether or not made in the ordinary course of business consistent with past practice, that (A) involves payments to a third party by the Company and its Subsidiaries in excess of US$1,000,000$500,000 on an annual basis or in excess of $1,000,000 over the current Contract term, with a term of greater than one (1) year that cannot be cancelled by the Company or a Subsidiary of the Company without penalty or further payment on thirty (30) days’ (or less) notice, (B) involves payments to the Company and its Subsidiaries in excess of $250,000 on an annual basis or in excess of $500,000 over the current Contract term or (C) the termination of which would reasonably be expected to result in a Company Material Adverse Effect.
(b) Except as would not reasonably be expected The Company has Made Available complete and correct copies of the Material Contracts to have a Company Purchaser, including all material modifications, amendments and supplements thereto. Each of the Material Adverse Effect, (i) each Material Contract is Contracts constitutes the valid and legally binding on obligation of the Company or a Company Subsidiary thereof, as applicable, enforceable in accordance with its terms (subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity), and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws effect in all material respects. There is no material breach or default under any Material Contract either by the Company or any of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreementits Subsidiaries or, to the knowledge Knowledge of the Company, no by any other party is thereto, no event has occurred that with the giving of notice, the lapse of time, or both would constitute a breach or default thereunder by the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has received any claim of any such breach or default.
(c) No party to any Material Contract has given notice to the Company or any of its Subsidiaries of, or made a claim against the Company or any of its Subsidiaries in respect of, any material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractthereunder.
Appears in 1 contract
Sources: Agreement and Plan of Merger (On Semiconductor Corp)
Material Contracts. (a) Except for (i) this Agreement The Company has delivered or otherwise made available to Purchaser prior to the date hereof true, correct and complete copies of all contracts and agreements (and the Contracts contemplated to be entered into hereunder by the Company)all amendments, (ii) contracts, arrangements or understandings modifications and supplements thereto and all side letters to which the Company or any Company Subsidiary is a party as affecting the obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound that are in effect on the date of this Agreement (the “Contracts”) filed as exhibits and are material to the Company SEC Reports business, properties or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any assets of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company its Subsidiaries taken as a whole;
, including, without limitation: (ivi) all Contracts relating employment, consulting (in which an individual is acting as a consultant to the purchase or sale of any Shares or other securities of the Company or any of its Subsidiaries under an agreement having a term of at least one year or requiring payments by the Company Subsidiary that has a fair market value and its Subsidiaries greater than $250,000 per annum), severance, golden parachute or purchase price of more indemnification contracts (other than US$1,000,000 under which there are material rights indemnification contracts, agreements or obligations outstanding;
provisions (vnot relating to individuals) any Contract that limits, or purports to limit, in the ability context of the Company's and its Subsidiaries' commercial contracts entered into in the ordinary course of their respective businesses) (including, without limitation, any contract to which the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock is a party involving employees of the Company or any of its wholly owned Company Subsidiaries); (ii) all material license agreements (including, prohibits without limitation, the pledging license agreement pertaining to the Company's use of the capital stock names "Bell" ▇▇d "Bellcore" and the "Bell" ▇▇go); (iii) all partnership, joint venture or similar agreements; (iv) all agreements currently in effect relating to the acquisition, sale or lease of properties or assets of the Company or any wholly owned Company Subsidiary of its Subsidiaries (by merger, purchase or prohibits the issuance sale of any guaranty assets or stock or otherwise) requiring payments to or by the Company or any wholly owned Company Subsidiary;
Subsidiary of at least $500,000 in any 12-month period; (viiv) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment all leases of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant real property to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.the
Appears in 1 contract
Sources: Stock Purchase Agreement (Science Applications International Corp)
Material Contracts. (a) Except for Section 2.17(a) of the Company Disclosure Schedule sets forth a complete and correct list (igrouped according to the categories described in the subsections below) this Agreement (and of all Contracts of the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings following nature to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to or by which the Company SEC Reports or (iii) as set forth in Section 3.15(a) any of its Subsidiaries, or any of their respective properties or assets, is otherwise currently bound, whether the Company Disclosure Letter is currently bound by active provisions or surviving provisions of expired or terminated Contracts (such Contracts each a “Material Contract” and collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:):
(i) any Contract that is required to be filed by in respect of the Company’s and its Subsidiaries’ businesses relating to, and evidences of, Indebtedness of the Company pursuant to Item 15 or any of Form 10-K under its Subsidiaries for borrowed money or the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness deferred purchase price of property (whether or not incurred, assumed, guaranteed or secured by any asset asset) in excess of $25,000;
(ii) any Contract pursuant to which the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individuallyits Subsidiaries has provided funds to or made any loan, capital contribution or other than investment in, or assumed, guaranteed or agreed to act as a surety with respect to any Indebtedness between or among Liability of, any of the Company and any Company SubsidiaryPerson;
(iii) other than Company Stock Plans and agreements evidencing Company Options (if any) set forth in Section 2.3(e) of the Company Disclosure Schedule and the Company Warrants (if any) set forth in Section 2.3(f) of the Company Disclosure Schedule, any joint venture Contract, strategic cooperation Contract for the issuance of any debt or partnership arrangementsequity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other agreement involving a sharing of profitsownership interests of, losses, costs or liabilities by the Company or any Company Subsidiary with of its Subsidiaries, or for the purchase of any Third Party, in each case that is material to the business debt or equity security or other ownership interest of the Company and the Company Subsidiaries taken as a wholeany Person;
(iv) all Contracts relating any Contract (A) granting exclusive rights to the purchase sell to any Person in any manner, use, develop, distribute, make available or sale of otherwise exploit any Shares Company Product; or other securities of the (B) otherwise contemplating an exclusive relationship between Company or its Subsidiaries and any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingother Person;
(v) any Contract that limits, or purports to limit, curtail or restrict the ability of the Company or any Company Subsidiary of its Subsidiaries to compete in any material line of business or with any person or entity or in any geographic area or during line of business, or with any period other Person, sell to any Person in any manner, use, develop, distribute, make available or enforce any Intellectual Property Rights owned by or exclusively licensed to the Company or any of timeits Subsidiaries, or hire or solicit any Person in any manner, or that grants the other party or any third Person “most favored nation” or similar status, any type of special discount rights, or any right of first refusal, first notice or first negotiation;
(vi) any Contract prohibiting that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would prohibit or delay the payment of dividends or distributions in respect consummation of the capital stock of the Company transactions contemplated by this Agreement or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryother Transaction Documents;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof), or is a Guarantor with respect to, (A) any Real Property; or (B) any tangible personal property and, in the case of clause (B), that involves an aggregate future or potential Liability or receivable, as the case may be, in excess of $25,000;
(viii) any executory Contract for the sale or purchase of any Real Property, or for the sale or purchase of any tangible personal property in an amount in excess of $10,000;
(ix) any Contract obligating the Company or any of its Subsidiaries licenses to indemnify or hold harmless any Person in an amount in excess of $25,000;
(x) any Contract containing confidentiality clauses; provided, that without limiting the Company’s obligation under any part of this subsection (a) other than this subsection (a)(x) to list Contracts in Section 2.17(a) of the Company Disclosure Schedule, the Company is not obligated hereunder to list in Section 2.17(a)(x) of the Company Disclosure Schedule (A) any non-disclosure agreements in the Company’s standard form so long as a copy of such standard form has been Made Available to APC; or (B) any Contract disclosed and Made Available to APC pursuant to another subsection of this subsection (a) containing any standard confidentiality clauses;
(xi) any Contract relating in whole or in part to, or that includes (A) any sale, assignment, hypothecation, other transfer, license, option, other grant of rights under or with respect to or covenant not to bring claims for infringement or other misappropriation of any Intellectual Property Rights; or licenses out (B) any use limitation with respect to any Technology or Intellectual Property owned Rights;
(xii) any Contract relating to the acquisition, transfer, development or sharing of any Technology or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by the Company or such its Subsidiaries);
(xiii) any license agreement regarding Company Subsidiary or Company Subsidiaries Intellectual Property (other than license agreements Off-the-Shelf-Software Contracts);
(xiv) any Contract with any Related Party of the Company or any of its Subsidiaries or with any Related Party of such Related Party;
(xv) any employment, consulting or professional services Contract;
(xvi) any licensing, reselling, sales, marketing, merchandising or distribution Contract;
(xvii) any joint venture or partnership, joint development, merger, asset or share purchase or divestiture Contract relating to the Company or any of its Subsidiaries;
(xviii) any power of attorney given by the Company (other than a power of attorney given in the ordinary course of business with respect to routine tax matters);
(xix) any Contract set forth or required to be set forth in Section 2.15(m)(i) or Section 2.15(m)(ii) of the Company Disclosure Schedule;
(xx) any Contract with any labor union or providing for commercially available software on standard terms benefits under any Employee Plan;
(xxi) any Contract relating to settlement of any administrative or non-exclusive licenses granted judicial proceedings within;
(xxii) any Government Contract;
(xxiii) any distribution agreement or other Contract relating to distribution of any Company Products;
(xxiv) any sales representative, commission or other Contract relating to compensation payable to consultants, sales representatives or other third parties with respect to sales of any Company Products;
(xxv) any wholesaler, supply, or other Contract with any third party relating to supply to the Company of raw materials or other products used in connection with the manufacture, preparation of sale of any Company Products;
(xxvi) any Contracts with insurance companies, any Governmental Authority or other third party payors concerning reimbursement or payments for Company Products;
(xxvii) any Contract not otherwise disclosed pursuant to another subparagraph of this Section 2.19 that was not made in the ordinary course of business); and
(xxxviii) any Contract providing for any change other Contract, whether or not made in the ordinary course of control business consistent with past practice, that (A) involves a future or similar payments to a third party potential Liability or receivable, as the case may be, in excess of US$1,000,000$25,000 on an annual basis or in excess of $50,000 over the current Contract term; (B) has a term greater than one year and cannot be cancelled by the Company or a Subsidiary of the Company without penalty or further payment and without more than thirty (30) Business Days’ notice; or (C) is material to the business, operations, assets, financial condition, results of operations or prospects of the Company and its Subsidiaries, taken as a whole.
(b) Except as would not reasonably be expected The Company has Made Available complete and correct copies of the Material Contracts to have a Company APC, including all modifications, amendments and supplements thereto. Each of the Material Adverse Effect, (i) each Material Contract is Contracts constitutes the valid and legally binding on obligation of the Company or a Company Subsidiary thereof, as applicable, enforceable in accordance with its terms (subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity), and is in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws effect in accordance with its terms. There is no material breach or default under any Material Contract either by the Company or any of general applicability relating to its Subsidiaries or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge Knowledge of the Company, no by any other party is in material thereto, no event has occurred that with the giving of notice, the lapse of time, or both would constitute a breach or violation of, or default under, any Material Contract; (iii) thereunder by the Company or any of its Subsidiaries or any other party, and neither the Company nor any of its Subsidiaries have not has received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any such breach or default.
(c) No party to any Material Contract; and (iv) Contract has given notice to the Company or any of its Subsidiaries of or made a claim against the Company or any of its Subsidiaries in respect of any breach or default thereunder.
(d) There are no expired Contracts to which the Company or any of its Subsidiaries, or any of their respective properties or assets, is otherwise bound or has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractrights.
Appears in 1 contract
Material Contracts. (a) Except for (i) For purposes of this Agreement (and Agreement, "Company Material Contract" shall mean any of the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings following to which the Company or any Company Subsidiary of its Subsidiaries is a party as of or by which it or its assets are bound and which is in effect on the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound byhereof:
(i) any Contract that "material contract" (as such term is required defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actand its Subsidiaries;
(ii) any Contract relating or series of related Contracts which (x) requires aggregate future expenditures by the Company and its Subsidiaries (in the aggregate) in excess of $250,000 or which is reasonably expected to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of result in payments to the Company or any of its Subsidiaries (in the aggregate) in excess of $250,000, (y) relates to the disposition or acquisition by the Company Subsidiary) or any of more than US$2,000,000 its Subsidiaries of assets for consideration in excess of $250,000 or any interest in excess of $250,000 in any other Person or business enterprise, in each such Contract individuallycase, other than any Indebtedness between in the ordinary course of business and (z) concerns a partnership, joint venture, joint development, merger, acquisition, tender offer, exchange offer or among any of the Company and any Company Subsidiarysimilar arrangement with one or more Persons;
(iii) any joint venture Contractemployment, strategic cooperation contractor or partnership arrangements, consulting Contract with any executive officer or other agreement involving a sharing Employee/Service Provider of profitsthe Company or any of its Subsidiaries providing for annual compensation in excess of $100,000 or member of the Company's board of directors, losses, costs or liabilities other than those that are terminable by the Company or any of its Subsidiaries on no more than thirty (30) days notice without liability or financial obligation to the Company Subsidiary or any of its Subsidiaries, or any collective bargaining agreement or contract with any Third Party, labor union or other employee organization;
(iv) any agreement of indemnification or any guaranty (other than (1) guarantees by the Company of obligations of any of its wholly-owned direct or indirect Subsidiaries or (2) any such agreement or guarantee entered into in each case that is material to the ordinary course of business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingits Subsidiaries);
(v) any Contract that limitsand any Company Employee Plan or Employee Agreement, any of the benefits of which will be increased, or purports to limitthe vesting of benefits of which will be accelerated, by the ability occurrence of any of the Company transactions contemplated by this Agreement (either alone or upon the occurrence of additional or subsequent events) or the value of any Company Subsidiary to compete in of the benefits of which will be calculated on the basis of any material line of business the transactions contemplated by this Agreement (either alone or with any person upon the occurrence of additional or entity or in any geographic area or during any period of timesubsequent events);
(vi) any Contract prohibiting the payment of dividends or distributions Lease Document in respect of real property leased, licensed or subleased by the capital stock Company or any of its Subsidiaries with a square footage equal to or in excess of 2,000 square feet;
(vii) any Contract required to be disclosed pursuant to Section 3.14 or 3.22;
(viii) any hedging, futures, options or other derivative Contract;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit in excess of $250,000, other than accounts receivable and payable in the ordinary course of business;
(x) any settlement agreement which contains continuing material obligations of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(viixi) any Contract providing for any indemnification, earn-out, installment or other contingent obligations group of related Contracts with a Person (or similar payments that is still in effect and could reasonably be expected to result in payment group of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwiseaffiliated Persons), the termination or breach of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would not could reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding Effect on the Company; or
(xii) any Contract pursuant to which the Company or is obligated to reimburse any expenses incurred by a Company Subsidiary Person in connection with an Acquisition Proposal other than the expense reimbursement agreement dated November 15, 2006 (the "Expense Reimbursement Agreement"), by and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) between the Company and the Company Subsidiaries have not received any written claim an Affiliate of material default under any such Material Contract and, to the knowledge Parent in respect of the Company, no fact or event exists that could give rise to reimbursement of expenses incurred by any claim Affiliates of material default under any Material Contract; and (iv) Parent in connection with the Company has not received, Merger as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractmore fully set forth therein.
Appears in 1 contract
Material Contracts. Other than the Interest Documents, the Carve-out APA and all other agreements required to implement the Carve-out, and save as fairly disclosed in the Data Room, the Company is not a party to any agreement that:
(a) Except for requires the payment of any carry, promote, royalty or net profit interest agreement or similar arrangements under which costs, production, profits or revenue that are related to or generated in connection with the “Participating Interests” held by the Company in the DWT Petroleum Agreement and the WCTP Petroleum Agreement (each as defined therein) are to be borne or to be received other than in proportion to the Company’s “Participating Interests”;
(b) (i) this Agreement limits in any material respect either the type of business in which the Company (and or in which any member of the Contracts contemplated to be entered into hereunder by Purchaser Group after Closing) may engage or the Companymanner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), ; (ii) contracts, arrangements would require the disposition of any material assets or understandings to which the Company or any Company Subsidiary is a party as line of business of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports Company; or (iii) as set forth in Section 3.15(agrants “most favoured nation” status with respect to any material obligations that, after Closing, would apply to the Purchaser Group, including the Company;
(c) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
grants (i) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (ii) puts, calls or similar rights, to any Contract person (other than the Company) with respect to any asset that is required material to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange ActBusiness;
(iid) any Contract relating under which a change of control or assignment provision would provide a right for a third party to any credit, loan terminate (and such termination would have a material adverse effect on the Company) or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset require a payment in excess of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities 1,000,000 to be made by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business member of the Company and the Company Subsidiaries taken Purchaser Group as a wholeresult of the entry into and performance of the Transaction Documents;
(ive) all Contracts was entered into to settle any material litigation and that imposes material ongoing obligations on the Company or the Business;
(f) is a partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the purchase formation, creation, operation, management or sale control of any Shares partnership, limited liability company or other securities of joint venture in which the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another personowns, directly or indirectly (by mergerindirectly, license any voting or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;economic interest; or
(ixg) any Contract that are license agreements material relates to the acquisition or disposition of any business or assets (other than the purchase and sale of hydrocarbon products in the Company and the Company Subsidiaries, taken as a whole, ordinary course of business consistent with past practice) pursuant to which the Company or has any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party liability in excess of US$1,000,000.
(b) Except as would not reasonably be expected to have 5,000,000 in any transaction or series of related transactions, each such contract being a Company Material Adverse Effect, (i) each Material Contract is valid and binding on (provided always that the Company or a Company Subsidiary and term Material Contract excludes in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, each case any Material Contract; (iii) contract whereby the Company and the Company Subsidiaries have not received any written claim of material default other joint venture partners under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contractrelevant Interest Documents are also a party).
Appears in 1 contract
Material Contracts. (a) Except for (i) this Agreement (and the All Contracts contemplated required to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth Documents have been so filed in a timely manner. Section 3.15(a3.16(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”)Schedule sets forth a true and complete list, as of the date hereof, of this Agreement, none each of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party to or by which the Company or any of its Subsidiaries or any of their assets or businesses are bound by:(and any amendments, supplements and modifications thereto):
(i) any Contract that is required to be filed by the Company pursuant to a “material contract” (as such term is defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange Act);
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of under which the Company or any Company Subsidiary) of its Subsidiaries is required to make payments of, or deliver goods or services having a value of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary$50,000;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving Contract that contains a sharing of profits, losses, costs or liabilities by non-solicitation obligation binding on the Company or any Company Subsidiary with any Third Party, in each case of its Subsidiaries or that is material to materially limits the business ability of the Company and the Company or any of its Subsidiaries taken as a wholeto compete or provide services in any line of business or with any Person or in any geographic area;
(iv) all Contracts relating any Contract required to the purchase or sale be disclosed pursuant to Item 404 of any Shares or other securities Regulation S-K of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingExchange Act;
(v) any Contract that limitspermits any Person other than Company and its Subsidiaries to manufacture, market, offer, distribute, or purports to limit, the ability of the Company or sell any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock products of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of including distribution, sales representative, and similar agreements;
(vi) any confidentiality or nondisclosure agreements (A) restricting the Company or any wholly owned Company Subsidiary of its Subsidiaries from disclosing any information or prohibits (B) restricting any other Person from disclosing any information regarding the issuance Company, any of any guaranty by the Company its Subsidiaries, or any wholly owned Company Subsidiaryof their businesses;
(vii) any Contract providing or series of related Contracts (A) relating to indebtedness for any indemnification, earn-out, installment borrowed money or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from (B) constituting a guarantee by the Company or any Company Subsidiary, by or to of its Subsidiaries of the obligations of any Third Partyother Person (other than a wholly-owned Subsidiary of the Company) for borrowed money;
(viii) any Contract providing for the acquisition from another person acquisition, transfer, use, development, sharing or disposition to another person, directly or indirectly (by merger, license or otherwise)grant of any right in or to any Intellectual Property, with the exception of assets shrink-wrap, click-wrap, and off-the-shelf software licenses, and any other licenses of un-customized software that is commercially available to the public generally, in each case with one-time or capital stock annual license, maintenance, support and other fees of $100,000 or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000less;
(ix) any Contract that are license agreements provides for any material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant “most favored nation” provision or equivalent preferential pricing terms to which the Company or any of the Company its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business); andis subject;
(x) any Contract providing with the Company’s top twenty (20) suppliers (including purchasing agreements, group purchasing agreements, and excluding any Contract described by clauses (viii) and (ix) below and excluding work orders, statements of work, purchase orders and similar contracts) (measured by dollar volume of purchases of the Company during the twelve (12) months ended December 31, 2016);
(xi) any Contract with the Company’s the top twenty (20) customers (excluding any Contract described by clause (vii) above or clause (ix) below and excluding work orders, statements of work, purchase orders and similar contracts) (measured by volume of spending by the customer during the twelve (12) months ended December 31, 2016);
(xii) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Governmental Entity, on the other hand, involving the purchase or sale of goods or the provision of services for the benefit of, or by, any Governmental Entity;
(xiii) any purchase, sale or supply contract that contains minimum volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements;
(xiv) any Company Lease Agreements;
(xv) any acquisition or divestiture agreement (A) entered into since January 1, 2013 or (B) that contains “earn-out” provisions or other contingent payment obligations, or any continuing indemnification provisions, in each case, that have not been satisfied in full or otherwise expired by their terms;
(xvi) any Contract for any change of control joint venture, partnership or similar payments arrangement;
(xvii) any “single source” supply contract pursuant to which goods or materials that are material to the Company or any of its Subsidiaries are supplied to the Company or such Subsidiary from an exclusive source;
(xviii) any Contract that contains a third standstill or similar agreement pursuant to which one party in excess to such Contract has agreed not to acquire assets or securities of US$1,000,000any other party to such Contract or any of its affiliates;
(xix) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Health Care Professional, on the other hand; or
(xx) any Contract that grants any rights of first refusal or rights of first offer or similar rights or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses.
(b) Except as has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Contract set forth or required to be set forth in Section 3.16(a) of the Company Disclosure Schedule or filed or required to be filed as an exhibit to the Company SEC Documents (the “Company Material Contract Contracts”) is valid and binding on the Company or a Company its applicable Subsidiary and, to the Knowledge of the Company, each other party thereto, and is and in full force and effecteffect and enforceable by the Company or the applicable Subsidiary in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar except as limited by Laws affecting the enforcement of general applicability relating to or affecting creditors’ rightsrights generally or by general equitable principles (whether considered in a Proceeding at law or in equity), (ii) the Company, or the applicable Subsidiary, has performed all obligations required to be performed by it under each Company Material Contract, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to general equity principles; the Knowledge of the Company, no other party to any Company Material Contract is (iiwith or without notice or lapse of time, or both) in breach or default thereunder and, to the Knowledge of the Company, no event has occurred or circumstance exists which (with or without notice or lapse of time, or both) would constitute a breach or default thereunder, and (iii) since January 1, 2015, neither the Company nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential breach or violation of, default under, or failure to comply with, any term or requirement of any Company Material Contract, or any written notice of revocation, cancellation or termination of any Company Material Contract.
(c) The Company has made available to Parent true and complete copies of each Company Material Contract (including any amendments or modifications thereto) as of the date of this Agreement, to the knowledge of the Company, no other party .
(d) The Medihoney Agreement is in material breach or violation of, or default under, any Material Contract; (iii) full force and effect and enforceable by the Company and in accordance with its terms, except as limited by Laws affecting the Company Subsidiaries have not received any written claim enforcement of material default under any such Material Contract and, creditors’ rights generally or by general equitable principles (whether considered in a Proceeding at law or in equity). At or prior to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any the Company has performed all obligations required to be performed by it and paid all amounts required to be paid by it pursuant to the Medihoney Agreement, and it is not (with or without notice or lapse of time, or both) in writing from any person that such person intends breach or default thereunder and no other party to terminate any Material Contractthe Medihoney Agreement is (with or without notice or lapse of time, or both) in breach or default thereunder and no event has occurred or circumstance exists which (with or without notice or lapse of time, or both) would constitute a breach or default thereunder.
Appears in 1 contract
Sources: Merger Agreement (Integra Lifesciences Holdings Corp)
Material Contracts. (a) Except for (iSchedule 4.14(a) sets forth, by reference to the applicable subsection of this Agreement (and the Contracts contemplated to be entered into hereunder by the CompanySection 4.14(a), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as all of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such following outstanding Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by:
(i) any Contract that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Act;
(ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Subsidiaries is a party or by which any of them or their respective assets of properties are bound (collectively, the “Material Contracts”):
(i) Contracts with any Seller or Affiliate thereof or any current or former officer, director, equityholder, member, shareholder or Affiliate of the Company or any of the Subsidiaries;
(ii) Contracts with any labor union or association representing any employee of the Company or any of the Subsidiaries;
(iii) Contracts for the sale of any of the assets of the Company or any of the Subsidiaries licenses other than in Intellectual Property the Ordinary Course of Business or licenses out Intellectual Property owned for the grant to any Person of any preferential rights to purchase any of its assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information;
(v) Contracts containing covenants of the Company or any of the Subsidiaries not to compete in any line of business or with any Person in any geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with the Company or any of the Subsidiaries in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(vi) Contracts relating to the acquisition (by merger, purchase of equity interests or shares or assets or otherwise) by the Company or such any of the Subsidiaries of any operating business or material assets or the share capital or other equity interests of any other Person;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of the Company Subsidiary or any Subsidiary, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(viii) purchase Contracts or commitments giving rise to Liabilities of the Company or any of the Subsidiaries in excess of RMB500,000;
(other than license agreements ix) all Contracts providing for commercially available software on standard terms payments by or non-exclusive licenses granted to the Company or any of the Subsidiaries in excess of RMB250,000 in any fiscal year or RMB1,000,000 in the ordinary course of business); andaggregate during the term thereof;
(x) any Contract providing for any change of control or similar payments to a third party all Contracts in excess of US$1,000,000RMB 100,000 obligating the Company or any of the Subsidiaries to provide or obtain products or services for a period of one year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs;
(xi) Contracts under which the Company or any of the Subsidiaries has made advances or loans to any other Person;
(xii) Contracts providing for severance, retention, change in control or other similar payments;
(xiii) Contracts for the employment of any individual on a full-time, part-time or consulting or other basis providing annual compensation in excess of RMB200,000;
(xiv) material management Contracts and Contracts with independent contractors or consultants (or similar arrangements) that are not cancelable without severance, penalty or further payment and without more than 30 days’ notice;
(xv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the Company or any of the Subsidiaries;
(xvi) Contracts (or group of related Contracts) which involve the expenditure of more than RMB250,000 annually or RMB500,000 in the aggregate.
(b) Except as would not reasonably be expected to have a Company Each of the Material Adverse Effect, (i) each Material Contract Contracts is valid and binding on the Company or a Company Subsidiary and in full force and effecteffect and is the legal, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium valid and similar Laws binding obligation of general applicability relating to the Company or affecting creditors’ rightsany Subsidiary which is party thereto, and to general equity principles; (ii) as of the date other parties thereto enforceable against each of them in accordance with its terms and, upon consummation of the transactions contemplated by this Agreement, to shall, except as otherwise stated in Schedule 4.14(b), continue in full force and effect without penalty or other adverse consequence. Neither the knowledge of the Company, no other party Company nor any Subsidiary is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) , nor, to the Knowledge of the Company or the Sellers, is any other party to any Material Contract in breach of or default thereunder, and no event has not receivedoccurred that with the lapse of time or the giving of notice or both would constitute a breach or default by the Company, as any Subsidiary or any other party thereunder. No party to any of the date Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of this Agreement, any notice in writing from any person that such person intends significant dispute with respect to terminate any Material Contract. The Company has delivered to Buyer true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in on Section 3.15(a3.17(a) of the Company Disclosure Letter (such Contracts collectively, and excluding any of the “Material Contracts”)Real Property Leases, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to to, and neither the Company nor any of its Subsidiaries (or any property or asset thereof) is bound by:, any of the following (each, a “Company Material Contract”):
(i) any Contract that is required to be filed by the Company pursuant to a “material contract” (as such term is defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange Securities Act);
(ii) any Contract (A) relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of Subsidiaries (including the Company Credit Agreement) or any wholly owned Company Subsidiary or prohibits the issuance guarantee of Indebtedness of any guaranty Person (other than solely between or among the Company and its Subsidiaries), (B) securing any Indebtedness through any Encumbrance or (C) otherwise creating an Encumbrance, in each case where such Indebtedness or the Liabilities securing such other Encumbrance exceed $250,000 individually or $500,000 in the aggregate for all such Contracts;
(iii) any Restrictive Contract;
(iv) any joint venture, partnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of, or investment by the Company or any wholly owned of its Subsidiaries in, any joint venture, partnership or limited liability company, other than any such agreements or arrangements solely between or among the Company Subsidiaryand/or its Subsidiaries;
(v) any collective bargaining agreement or other Contract to or with any labor union or other employee representative of a group of employees;
(vi) any Related Party Contract;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected pursuant to result in payment of more than US$250,000, to or from which the Company or any Company Subsidiaryof its Subsidiaries (A) in any transaction or series of related transactions, has an option, right or obligation to purchase any other business or portion thereof on an ongoing basis (including by purchasing the assets or capital stock of another Person, other than the purchase of merchandise inventory in the ordinary course of business consistent with past practice), in each case with an aggregate fair market value (or for aggregate consideration, including assumption of Indebtedness) exceeding $200,000, (B) in any transaction or series of related transactions, purchased any such business or portion thereof with an aggregate value exceeding (or for aggregate consideration, including assumption of Indebtedness, exceeding) $200,000 and continues to have any Third Partyongoing obligations (including obligations under any shareholder agreement), or (C) without limitation of clause (B), has an obligation to make any earn-out payments based on future performance of an acquired business or assets;
(viii) any Contract providing for that (A) obligates the acquisition from another person Company or disposition any of its Subsidiaries to another person, directly or indirectly (by merger, license or otherwise), of assets make a loan or capital stock contribution to, or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) investment in excess of US$5,000,000$250,000 in, any Person (other than loans to the Company or any of its Subsidiaries) or (B) on a stand-alone basis obligates the Company or any of its Subsidiaries to provide indemnification or a guarantee that would reasonably be expected to result in payments in excess of $250,000;
(ix) any Contract that are license agreements material (A) grants to the business any Person a right of first refusal, right of first offer, option or similar preferential right to purchase any of the Company and Company’s or any of its Subsidiaries’ capital stock or assets, (B) obligates the Company Subsidiaries, taken as a whole, or any of its Subsidiaries to sell to any Person or Persons (or pursuant to which the Company or any of its Subsidiaries sold to any Person or Persons and continues to have any ongoing obligations) any capital stock or assets, other than (x) upon exercise of Company Equity Awards set forth on Section 3.2(c) of the Company Subsidiaries licenses in Intellectual Property Disclosure Letter or licenses out Intellectual Property owned by (y) the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted sale of merchandise inventory in the ordinary course of businessbusiness consistent with past practice, or (C) obligates the Company or any of its Subsidiaries to sell, assign, or otherwise transfer or dispose of to any Person or Persons (or pursuant to which the Company or any of its Subsidiaries sold, assigned, or otherwise transferred or disposed of to any Person or Persons and continues to have any ongoing obligations); and, in any transaction or series of related transactions, any assets, property or business having an aggregate value exceeding (or for consideration, including assumption of Indebtedness, exceeding) $50,000, except for the sale of merchandise inventory in the ordinary course of business consistent with past practice;
(x) any Contract providing that contains any rights of exclusivity granted by the Company or any of its Subsidiaries to any Person (other than to the Company or any of its Subsidiaries);
(xi) any Contract that, as its primary purpose, grants to the Company or any of its Subsidiaries any right to use, exploit or practice any Intellectual Property (except for any change of control or similar COTS Licenses) that by its terms calls for aggregate payments to a third party or by the Company or any of its Subsidiaries;
(xii) any Contract that, as its primary purpose, (A) provides for the development, modification, design, invention, production, acquisition, purchase, formulation or creation of any Intellectual Property or (B) grants to any Person (other than the Company or any of its Subsidiaries) any right to use, exploit or practice any Owned Intellectual Property;
(xiii) any Contract that Company reasonably anticipates requiring aggregate payments to or by the Company or any of its Subsidiaries in excess of US$1,000,000.$750,000, payable from March 4, 2018 to February 28, 2019;
(bxiv) Except as would not reasonably be expected any employment or consulting Contract (in each case with respect to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on which the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws any of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) its Subsidiaries has continuing obligations as of the date of this Agreement) with any current or former (A) officer of the Company or any of its Subsidiaries, to (B) member of the knowledge Board of Directors of the Company, no or (C) employee of the Company or any of its Subsidiaries providing for an annual base salary or payment in excess of $350,000;
(xv) any Contract with any agent, distributor or sales representative (A) involving annual aggregate consideration in excess of $350,000 or (B) that is not terminable on thirty (30) days’ or less notice without penalty or payment of any termination fee;
(xvi) any Privacy Agreement (including prior version of any consumer facing privacy policies);
(xvii) any Contract that contains a “change of control” or similar provision that would be triggered by the Merger or any of the other party Transactions;
(xviii) any Contract which commits the Company or any of its Subsidiaries to enter into any of the foregoing; or
(xix) any Contract which is not otherwise described in clauses (i)-(xviii) above that is material breach or violation of, or default under, any Material Contract; (iii) to the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract andits Subsidiaries, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and taken as a whole.
(ivb) the Company has not received, as As of the date of this Agreement, the Company has made available to Parent true, correct and complete copies of all Company Material Contracts (including all amendments thereto), along with true, correct and complete written summaries of all Company Material Contracts that are unwritten, if any. The copies of the Real Property Leases identified on Section 3.17(b) of the Company Disclosure Letter which were provided to Parent prior to the date of this Agreement were true, correct and complete copies of the respective Real Property Leases (with the exception of store identifying information which was redacted) as of the date they were provided to Parent.
(c) Except as set forth or described on Section 3.17(c) of the Company Disclosure Letter, (i) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to a Company Contract, is in breach or violation of, or in default under, any Company Contract, (ii) no event has occurred that would result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments (including any right of acceleration of any royalties, fees, profit participations or other payments to any Person) pursuant to, any of the terms, conditions or provisions of any Company Contract, (iii) each Company Contract is legal, valid and binding on each of the Company and its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at equity or law), and is in full force and effect with respect to each of the Company and its Subsidiaries, as applicable and, to the Knowledge of the Company, each other party thereto, (iv) neither the Company nor any of its Subsidiaries has waived any right under any Company Material Contract or given to or received from any other Person, at any time since January 1, 2015, any notice in writing from or other communication regarding any person that such person intends actual, alleged, possible or potential breach of, or default (with or without notice or lapse of time or both) under, any Company Material Contract, and, to the Knowledge of the Company, is not otherwise aware of any intention by any counterparty thereto to terminate (other than Company Material Contracts that are expiring pursuant to their terms), or not renew any Company Material Contract, or is seeking the renegotiation thereof or substitute performance thereof, and (v) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries are subject to any pending, threatened or scheduled audit or investigation by any counterparty to a Company Material Contract, except, with respect to clauses (i), (ii), (iii), (iv) and (v), for such breaches, violations, conflicts, defaults, triggering of payments, terminations, amendments, accelerations, cancellations, breaches, defaults, losses of benefits or rights, failures to be valid, binding and enforceable, waivers, or notices or intentions, which, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement
Material Contracts. (a) Except for (i) this Agreement (and the Contracts contemplated to be entered into hereunder by the Company), (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Schedules contains a true, complete and correct list of each of the following Contracts collectively, the “Material Contracts”)to which a Group Company is, as of the date of this Agreement, none a party or is bound (the Contracts required to be set forth on Section 3.15(a) of the Company or any Company Subsidiary is a party to or bound by:Disclosure Schedules, collectively, the “Material Contracts”):
(i) any Contract relating to Indebtedness of any Group Company or to the placing of a Charge on any assets or properties of any Group Company, other than Contracts relating to operating leases that is required to be filed by the Company pursuant to Item 15 of Form 10-K under the Exchange Actare not material;
(ii) any Contract licence or royalty agreement or other Contract: (a) relating to any creditIntellectual Property that is material to the Business; (b) providing for the license of or release, loan coexistence, or facility arrangementimmunity under, guarantee or Indebtedness the grant of a covenant not to sue with respect to, material Company Owned Intellectual Property (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than non-exclusive licenses of Company Owned Intellectual Property granted to customers and vendors in the Ordinary Course, on standard terms and conditions); or (c) the development of any Indebtedness Intellectual Property, independently or jointly, by or for any Group Company (excluding invention assignments or similar Contracts between or among any of the Group Company and any Company Subsidiaryemployee or contractor on any Group Company’s standard form agreement made available to Prospector and without any material deviations or exclusions);
(iii) any joint venture Contract, strategic cooperation Contract whereby a Group Company has undertaken to refrain from engaging in any line of business or partnership arrangementsfrom competing with a particular Person or group of Persons, or other agreement involving a sharing of profitsthat contains any exclusivity, losses“most favored nation” or similar provisions, costs obligations or liabilities by the Company restrictions, or that otherwise restrains its ability to engage in or operate any Company Subsidiary with any Third Party, in each case that is material to the business of the Company and the Company Subsidiaries taken as a wholebusiness;
(iv) all Contracts relating any Contract involving any continuing representation, warranty or indemnification obligation of a Group Company to any other Person, other than in the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstandingOrdinary Course;
(v) except as for Contracts entered between a Group Company with another Group Company, any Contract that limits, whereby a Group Company is a guarantor or purports to limit, the ability indemnitor of the Company or any Company Subsidiary to compete in indebtedness of any material line of business or with any person or entity or in any geographic area or during any period of timePerson;
(vi) any Contract prohibiting the payment of dividends partnership, joint venture, profit-sharing, collaboration, co-promotion, commercialization, research or distributions in respect of the capital stock of the Company development or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiaryalliance Contracts;
(vii) any Contract providing for with any indemnificationPerson with whom a Group Company, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment does not deal at arm’s length within the meaning of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third PartyTax Act;
(viii) any Contract providing for lease, agreement in the acquisition from another person nature of a lease or disposition agreement to another personlease whether as lessor or lessee, directly or indirectly (by merger, license or otherwise), in respect of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000immovable property;
(ix) any Contract that are license agreements material to retention, change of Control or severance Contract, agreement or commitment for the business benefit of the Company and the Company Subsidiariesa Management Employee, taken as an officer or a whole, pursuant to which the Company or any director of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than license agreements for commercially available software on standard terms or non-exclusive licenses granted in the ordinary course of business)a Group Company; and
(x) any Contract providing for to which a Group Company is a party or by which it may be bound and which requires or may require the payment or provision by a Group Company to any change of control Person, or similar payments the payment or provision by any Person to a third party Group Company of any payments or of goods or services having a fair market value, in each case, in excess of US$1,000,000$100,000.
(b) Except as would not reasonably be expected to have a Company All Material Adverse Effect, (i) each Material Contract is Contracts represent valid and binding on obligations of the relevant Group Company. Except as disclosed in Section 3.15(b) of the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the CompanyDisclosure Schedules, no other party Group Company is in material default or breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, there exists no fact state of facts which after notice or event exists that could give rise the passage of time, or both, would constitute such a default or breach. All Material Contracts are now in good standing and each Group Company is entitled to any claim all benefits, rights and privileges thereunder. No Group Company has received or served notice of material default under termination of any Material Contract; and (iv) , and, to the Company has not received, as knowledge of the date Company, there are no grounds for termination, rescission, cancellation or repudiation of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract. True, correct and complete copies of all Material Contracts, including all amendments thereto, have been previously delivered to or made available to Prospector or its Representatives.
Appears in 1 contract
Sources: Business Combination Agreement (Prospector Capital Corp.)
Material Contracts. (a) Except Section 3.17(a) of the Company Disclosure Schedule sets forth a list (as of the date of this Agreement) of the following (except for those contracts that have expired or have been terminated in accordance with their terms): (i) this Agreement (and each Contract which is likely to involve payment or receipt of annual consideration of more than $100,000, in the Contracts contemplated to be entered into hereunder by aggregate, over the Company)remaining term of such Contract, (ii) contractsall Contracts or indentures relating to borrowed money or other Indebtedness or the mortgaging, arrangements pledging or understandings otherwise placing a Lien on any material asset or material group of assets of the Company or any of its subsidiaries, including the amount of funded Indebtedness for borrowed money outstanding as of the date hereof under any such Contract or indenture, (iii) all joint venture or other similar agreements or other Contracts involving the purchase or disposition of any business or any material assets to which the Company or any of its subsidiaries is a party, (iv) all lease agreements to which the Company Subsidiary or any of its subsidiaries is a party as with annual lease payments in excess of $50,000, (v) Contracts under which the date Company or any of this Agreement its subsidiaries has advanced or loaned any third party an amount in excess of $100,000 (excluding, for avoidance of doubt, trade accounts receivable incurred in the ordinary course of business), (vi) Contracts or groups of related Contracts with the same party or group of parties requiring the payment or receipt of $50,000 or more per year which are not cancelable by the Company on 30-days-or-less notice without premium or penalty or other cost of any kind or nature, (vii) Contracts containing non-compete or non-solicitation covenants or most favored nations provisions by the Company or any of its subsidiaries, and (viii) warranty agreements with respect to the Company’s or its subsidiaries’ services or products, other than warranties granted in the ordinary course of business (the “Contracts”items listed in clauses (i) filed as exhibits through (viii) hereof, together with any Contract required to the Company SEC Reports or (iiibe disclosed pursuant to Section 3.15(b) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts hereof, collectively, the “Material Contracts”), as . The Company has made available to Merger Sub a correct and complete copy of the date of this Agreement, none each Material Contract listed in Section 3.17(a) of the Company or any Disclosure Statement.
(b) Except as disclosed in Section 3.17(b) of the Company Subsidiary is a party to or bound by:
Disclosure Schedule, (i) any Contract that is required to be filed by neither the Company pursuant nor any of its subsidiaries is, nor to Item 15 of Form 10-K the Company’s knowledge, is any other party, in default under the Exchange Act;
any Material Contract and (ii) any Contract relating to any credit, loan or facility arrangement, guarantee or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of the Company or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the Company and any Company Subsidiary;
(iii) any joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any Third Party, in each case that is material to the business Company’s knowledge, there has not occurred any event that, with the lapse of the Company and the Company Subsidiaries taken as time or giving of notice or both, would constitute such a whole;
(iv) all Contracts relating to the purchase or sale of default, except in either case, any Shares or other securities of the Company or any Company Subsidiary that such default which has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limitsnot had, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could not reasonably be expected to result in payment of more than US$250,000have, to or from the a Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant Material Adverse Effect. All Contracts to which the Company or any of the Company Subsidiaries licenses its subsidiaries is a party, or by which any of their respective assets are bound, are valid and binding, in Intellectual Property or licenses out Intellectual Property owned by full force and effect and enforceable against the Company or any such Company Subsidiary subsidiary, as the case may be, and to the Company’s knowledge, the other parties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or Company Subsidiaries (other than license agreements for commercially available software on standard terms similar laws relating to creditors’ rights generally and to the general principles of equity, and except with respect to any such failure to be valid and binding, in full force and effect or non-exclusive licenses granted in the ordinary course of business); and
(x) any Contract providing for any change of control or similar payments to a third party in excess of US$1,000,000.
(b) Except as would enforceable which has not had, and could not reasonably be expected to have have, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) as of the date of this Agreement, to the knowledge of the Company, no other party is in material breach or violation of, or default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any claim of material default under any Material Contract; and (iv) the Company has not received, as of the date of this Agreement, any notice in writing from any person that such person intends to terminate any Material Contract.
Appears in 1 contract
Material Contracts. (a) Except for (i) this Agreement (and for any Contract filed as an exhibit to the Contracts contemplated to be entered into hereunder by the Company)Company SEC Documents, (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in on Section 3.15(a) 4.18 of the Company Disclosure Letter Schedules, (such Contracts collectivelyii) for any Company Benefit Plan and (iii) for any nondisclosure agreement entered into (x) in the ordinary course of business or (y) in connection with discussions, the “Material Contracts”)negotiations and transactions related to this Agreement or any other potential similar strategic transactions, as of the date of this Agreement, none of neither the Company or nor any Company Subsidiary of its Subsidiaries is a party to or expressly bound byby any written agreement, lease, easement, license, sublicense, contract, subcontract, note, bond, mortgage, indenture or other legally binding obligation (each, a “Contract”) that:
(i) any Contract that is would be required to be filed by the Company pursuant to as a “material contract” (as such term is defined in Item 15 601(b)(10) of Form 10Regulation S-K under of the Exchange ActSEC);
(ii) any Contract is a partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any creditpartnership, loan limited liability company or facility arrangementjoint venture in which the Company owns, guarantee directly or Indebtedness indirectly, any voting or economic interest, other than with respect to any wholly owned Subsidiary of the Company;
(whether iii) is a non-competition Contract or not incurredany other Contract that materially limits, assumedrestricts or prohibits, guaranteed or secured by purports to limit, restrict or prohibit, individually or in the aggregate, (A) the manner or the localities in which any asset business of the Company or any of its Subsidiaries is or could be conducted, (B) the lines or types of businesses that the Company Subsidiaryor any of its Subsidiaries conducts or has a right to conduct or (C) the Company or any of more than US$2,000,000 for each such Contract individuallyits Subsidiaries from engaging in any business with any Person;
(iv) (A) grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its Subsidiaries, (B) obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or contains a “most favored nation” or similar covenant with any third party or (C) involves a “minimum purchase” requirement or similar obligation;
(v) (A) relating to or evidencing Indebtedness of the Company or any Subsidiary of the Company in excess of $5,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries or (B) granting an Encumbrance (other than Permitted Encumbrances) securing Indebtedness in excess of $5,000,000 upon any assets or properties of the Company Subsidiaryor any of its Subsidiaries;
(iiivi) provides for any joint venture Contract, strategic cooperation guaranty of liabilities or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities obligations by the Company or any Company Subsidiary with any Third Partyof its Subsidiaries, in each case that is material to the business of the Company and the Company Subsidiaries its Subsidiaries, taken as a whole;
(iv) all Contracts relating to the purchase or sale of , other than any Shares or other securities of guaranty by the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) its Subsidiaries of any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock obligations of the Company or any of its wholly owned Company Subsidiaries, prohibits ;
(vii) limits or restricts the pledging of the capital stock ability of the Company or any wholly owned Company Subsidiary of its Subsidiaries to (A) declare or prohibits pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests, (B) pledge capital stock or (C) issue any guarantee of Indebtedness;
(viii) involves the issuance settlement of any guaranty pending or threatened Proceeding that (A) requires payment obligations after the date hereof in excess of $5,000,000 by the Company or any wholly owned Company Subsidiary;
of its Subsidiaries or (viiB) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from imposes material ongoing restrictions on the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000its Subsidiaries;
(ix) requires aggregate payments by the Company or any Contract of its Subsidiaries in excess of $3,000,000 in any twelve (12)-month period, other than (A) Contracts that are license agreements material to can be terminated by the business Company or any of its Subsidiaries on less than one hundred and twenty (120) days’ notice without payment by the Company or any Subsidiary of the Company and of any material penalty or (B) commercial agreements entered into in the ordinary course of business;
(A) relates to the disposition or acquisition (directly or indirectly) by the Company or any of its Subsidiaries of any material assets or properties of the Company or its Subsidiaries, taken as a wholepursuant to which any earn-out, deferred or contingent payment that would be required to be paid by the Company or any of its Subsidiaries, or indemnification obligations of the Company or any of its Subsidiaries, which remain outstanding (excluding ordinary course indemnification obligations in respect of representations and warranties that do not survive indefinitely) or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material interest in any other Person or other business enterprise;
(xi) with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by Exchange Act;
(xii) with any customer of the Company or such any of its Subsidiaries who, in the year ended December 31, 2023, was one of the twenty five (25) largest sources of revenues for the “Wealth” business segment of the Company Subsidiary and its Subsidiaries, based on amounts paid or payable;
(xiii) with any (a) vendor and (b) asset manager, in each case, of the Company or any of its Subsidiaries who, in the year ended December 31, 2023, was one of the five (5) largest sources of payment obligations for the Company and its Subsidiaries, based on amounts paid or payable;
(xiv) pursuant to which the Company or any of its Subsidiaries (A) is restricted in its right to assert, enforce, use or register any material Company Intellectual Property (including settlement agreements, co-existence agreements, consent agreements and covenants not to sue); or (B) grants to a third party or receives from a third party a license or other rights with respect to any material Intellectual Property; in the case of each (A) and (B), other than license agreements for commercially available software on standard terms or (i) non-exclusive licenses or other non-exclusive rights of Company Intellectual Property granted in the ordinary course of business); and
, (xii) any Contract providing for any change non-exclusive licenses or other non-exclusive rights of control Intellectual Property granted incidentally to the principal purpose of the Contract, and (iii) non-exclusive licenses or similar payments other non-exclusive rights granted to a third party the Company or its Subsidiaries of widely available commercial off-the-shelf Software with total annual license, maintenance, support and other fees not in excess of US$$1,000,000.
(bxv) Except as is a collective bargaining agreement or other Contract with any Union; or
(xvi) entered into after the date of this Agreement that would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or a Company Subsidiary and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles; (ii) if entered into as of the date of this Agreement.
(b) Each such Contract described in clauses (i) through (xvi) above, whether or not filed as an exhibit to the Company SEC Documents, is referred to herein as a “Material Contract.” The term “Material Contract” also includes: (i) the standard form of Advisory Contract pursuant to which any Adviser Subsidiary acts as an investment advisor or sub-advisor to, or manages any investment or trading account of, an Advisory Contract Client (which such form has been provided to Parent); (ii) any other Advisory Contract that materially deviates from such standard form and under which the Company or an Adviser Subsidiary received net revenue of at least $5,000,000 in the fiscal year ended December 31, 2023; and (iii) each Program Agreement that is used to serve Advisory Contracts representing net revenue in the aggregate of at least $5,000,000 in the fiscal year ended December 31, 2023. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, no any other party to a Material Contract is in material breach or violation of any provision of, or in default under, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any written claim of material default under any such Material Contract , and, to the knowledge of the Company, no fact event has occurred that, with or event exists that could give rise without notice, lapse of time or both, would constitute such a breach, violation or default or permit the other party to any claim of material default under terminate, modify or accelerate the performance obligations under, any Material Contract; and (iv) , except for breaches or violations or defaults that, individually or in the aggregate, would not have a Company Material Adverse Effect. The Company has not received, made available true and complete copies of each Material Contract described in clauses (i) through (xvi) above as of the date of this Agreement. Except as would not, individually or in the aggregate, have, or would reasonably be expected to have, a material effect on the Company and its Subsidiaries, each Material Contract is (i) a legal, valid and binding obligation of the Company or its Subsidiary that is a party thereto, as applicable, and, to the knowledge of the Company, the other parties thereto and (ii) in full force and effect. Since the Company Balance Sheet Date, neither the Company nor any of its Subsidiaries has received any written or, to the knowledge of the Company, oral notice from or on behalf of any party to a Material Contract indicating that such party intends to terminate, or not renew, any notice in writing from any person that Material Contract with such person intends party or to terminate any materially adjust the fee schedule under such Material Contract. To the knowledge of the Company, as of the date hereof, there is no solicitation or request that the Company or any Subsidiary be removed as manager of, or any other role or capacity with respect to, any Fund.
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)