Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound: (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act; (ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights; (iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement; (iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000; (v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries; (vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party; (vii) 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; (viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇; (ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016; (x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and (xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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, Merger Agreement (WHITEWAVE FOODS Co)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule 4.13(a) sets forth a true and complete listforth, as of by reference to the date applicable subsection of this AgreementSection 4.13(a), all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it or its assets or properties are bound (collectively, the Company or any of its Subsidiaries is bound:“Material Contracts”):
(i) Contracts with any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K current or former officer, director, member or Affiliate of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany;
(ii) Contracts with any Contract that (A) imposes labor union or association representing any restriction on the right or ability Employee of the Company, ;
(iii) Contracts for the sale of any of the assets of the Company other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its Subsidiaries assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, or any Affiliate sharing of any profits or proprietary information;
(v) Contracts containing covenants of them the Company not to compete with any other person in any line of business or geographic region (with any Person in any geographical area or that following not to solicit or hire any Person with respect to employment or covenants of any other Person not to compete with the Effective Time will restrict the ability of Parent or its Affiliates to engage Company in any line of business or compete in any geographic area) geographical area or (B) obligates the Company not to solicit or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) hire any Person with respect to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiariesemployment;
(vi) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company of any joint venture, partnership, limited liability company operating business or strategic alliance agreement material assets or the capital stock of any other similar Contract with a third partyPerson;
(vii) Contracts relating to the incurrence, assumption or guarantee of any Contract that obligates the Company Indebtedness or imposing a Lien on any of its Subsidiaries to make any loansthe assets of the Company, advances including indentures, guarantees, loan or capital contributions tocredit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or investments in, any personconditional sale or title retention agreements;
(viii) any each purchase Contract (A) granting giving rise to Liabilities of the Company or one in excess of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇$25,000;
(ix) each Contract providing for payments by or to the Company in excess of $25,000 in any Contract that is expected to result fiscal year or $50,000 in the payment or receipt of more than $30,000,000 by aggregate during the Company and its Subsidiaries in 2016term thereof;
(x) any Contract relating to the supply of any item used by all Contracts obligating the Company to provide or obtain products or services for a Subsidiary 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 has made advances or loans to any other Person, except advances to Employees of the Company that is a sole source in the Ordinary Course of supply Business;
(xii) Contracts providing for severance, retention, change in control or other similar payments;
(xiii) Contracts for the employment of any raw materialindividual on a full-time, component part-time or service consulting or other basis providing annual compensation in excess of $50,000;
(xiv) management Contracts and Contracts with independent contractors or consultants (or similar arrangements) in excess of $50,000 that is material are not cancelable without penalty or further payment and without more than thirty (30) 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 $25,000 annually or $100,000 in the aggregate or require performance by any party more than one year from the date hereof unless in the Ordinary Course of Business;
(xvii) all Intellectual Property Licenses, royalty Contracts and other Contracts relating to the Company any Intellectual Property (except licenses pertaining to “off-the-shelf” commercially available Software used pursuant to shrink-wrap or click-through license grants on reasonable terms for a license fee of no more than $1,000);
(xviii) incentives, grants or other agreements from or with any Governmental Authority;
(xix) Contracts for services from lawyers, accountants, financial advisors and its Subsidiaries, taken as a wholeconsultants (“Professional Service Providers”); and
(xixx) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, that are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior otherwise material to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this AgreementCompany.
(b) Neither the Company nor any Subsidiary Each of the Company Material Contracts is in breach of or default under full force and effect and is the terms of any Company Material Contract andlegal, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary Company, and of the Company that is party thereto 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, of each other party theretoshall, and is except as otherwise stated in Company Disclosure Schedule 4.13(b), continue in full force and effecteffect without penalty or other adverse consequence. There are no disputes pending orThe Company is not in material default under any Material Contract, nor, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge Knowledge of the Company, is any other party to any Material Contract in breach of or default thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default by the Company or any other party thereunder. Notwithstanding the generality of the foregoing, the Company is not in material default under the MOSA nor, to the Knowledge of the Company, is any other party to the MOSA in breach of or default thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default by the Company or any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no such party threatening has given notice of any significant dispute with respect to do soany Material Contract. The Company has, in each case except and will transfer to Purchaser at the Closing, good and valid title to the Material Contracts, free and clear of all Liens other than Permitted Exceptions. The Company has delivered to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. The Company is not and at Closing shall not be, obligated to make any payments to Professional Service Providers related to the Transaction, the wind down and liquidation of the Business or otherwise other than as has not had and would not reasonably be expected to have, individually set forth on Company Disclosure Schedule 4.14(a)(xix) or in the aggregate, a Company Material Adverse Effectas approved by Newco.
(c) Since January 1Company Disclosure Schedule 4.13(c) sets forth a complete and accurate list of all consents, 2016 to the date hereofwaivers, no Top Supplier approvals or Top Customer 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 authorizations of any intention Person required to cancel, terminate or substantially curtail its relationship with transfer the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoingMaterial Contracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Central Iowa Energy, LLC), Asset Purchase Agreement (Western Iowa Energy, L.L.C.)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) Other than any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them filed as an exhibit to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective TimeSEC Reports, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h5.19(a)(i) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material lists each Contract to which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries;
their respective properties or assets are bound (vi) any joint ventureeach such Contract, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
including (viii) any Contract that obligates filed as an exhibit to the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
SEC Reports and (viiiii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in set forth on Section 4.18(a)(xi)(A5.19(a)(ii) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting being a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Contract”): (a) that is material and was not entered into in the ordinary course of business; (b) that purports to limit the right of the Company has made available or the Company Subsidiaries to Parent prior engage or compete in any activity or line of business or to compete with any person or operate in any location; (c) that is a loan or credit agreement, mortgage, promissory note, indenture or other Contract evidencing indebtedness for borrowed money in an amount in excess of Twenty Five Million Dollars ($25,000,000) by the date Company or any of this Agreement a complete and correct copy of each the Company Material Contract as in effect on the date of this AgreementSubsidiaries; or (d) that relates to any swap, forward, futures, warrant, option or other derivative transaction.
(b) Notwithstanding anything in this Section 5.19 , “Company Material Contract” shall not include any Contract that (i) is terminable upon one hundred twenty (120) days’ or less notice without a penalty premium, (ii) will be fully performed or satisfied as of or prior to the Acceptance Time, or (iii) is solely between the Company and one or more Company Subsidiaries or is solely between Company Subsidiaries.
(c) (i) Neither the Company nor any Company Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, in any material respect, any Company Material Contract, in any material respect. No event has occurred or not occurred through (ii) none of the Company’s Company or any Company Subsidiary has received any claim 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, and (iii) no event has occurred which would result in a breach or violation of, or a default under, in any material respect, any Company Material Contract (in each case except as has not had and would not reasonably be expected to havecase, individually with or in the aggregate, a Company Material Adverse Effectwithout notice or lapse of time or both). Each Company Material Contract is a valid valid, binding and binding obligation of enforceable in accordance with its terms and is in full force and effect with respect to the Company or the Subsidiary of the Company that is party thereto Subsidiaries, as applicable, and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectparties hereto.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Medimmune Inc /De), Merger Agreement (Astrazeneca PLC)
Material Contracts. (a) Section 4.18(a) 4.18 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of lists the following Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party as of the date hereof (the “Company Material Contracts”):
(i) all Contracts that purport to limit, curtail or restrict the right of the Company or any Company Subsidiary in any material respect (A) to engage or compete in any line of business in any geographic area, with any Person or during any period of time, or (B) to solicit or hire any Person;
(ii) any Contract that grants any Person other than the Company or any Company Subsidiary any (A) exclusive license, supply, distribution or other rights, (B) material “most favored nation” rights, (C) material rights of first refusal, rights of first negotiation or similar rights, (D) exclusive rights to purchase any Company products, including products produced through foundry services, (E) material guaranteed availability of supply or services for a period greater than twelve (12) months, (F) guarantee as to foundry capacity or priority, (G) material rebates or (H) price guarantees for a period greater than twelve (12) months;
(iii) any Contract relating to the disposition or acquisition by the Company or any Company Subsidiary of any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into on or after January 1, 2006 (whether or not such acquisition or disposition has been consummated prior to the date of this Agreement), or (B) that contains ongoing non-competition or material indemnification obligations or other material ongoing obligations;
(iv) listing separately, except for such Contracts that have expired or been terminated and have no ongoing obligations (other than confidentiality obligations or indemnity obligations), all (A) In-Bound Patent Licenses, the primary purpose of which is to license one or more Patents, (B) Out-Bound Patent Licenses that license, or agree to license, a substantial portion of issued Company Patents or the primary purpose of which is to license one or more Patents, (C) Cross-licenses that license, or agree to license, a substantial portion of issued Company Patents or the primary purpose of which is to license one or more Patents and (D) other Patent Licenses, excluding Software license agreements executed in the normal course of business, that require a royalty payment to, or royalty payment by, the Company or any of the Company Subsidiaries;
(v) any Contract with respect to product or Intellectual Property development that is material to the Company and the Company Subsidiaries, taken as a whole;
(vi) any Technology transfer or license agreement related to a (A) manufacturing process or (B) related to product design that, in the case of clause (B), affects a material portion of the Company’s product portfolio;
(vii) any Contract with respect to product design services, foundry services, product assembly (packaging) and/or test, or material contract manufacturing services that affects a material portion of the Company’s product portfolio;
(viii) any Contract with any Governmental Authority or any Contract incorporating government acquisition terms (e.g., in the U.S., the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS)) involving payments of more than Two Million Dollars ($2,000,000) in any twelve (12) month period or requiring delivery of cost and pricing data;
(ix) any Contract that reasonably contemplates payments by or to the Company or any of the Company Subsidiaries of more than Ten Million Dollars ($10,000,000) in any twelve (12) month period;
(x) any customer Contract (other than standard purchase orders) that reasonably contemplates payment to the Company or any of the Company Subsidiaries of more than Five Million Dollars ($5,000,000) in any twelve (12) month period;
(xi) any Contracts with distributors or sales representatives or that otherwise entitle a third party to a commission;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts, in each case, relating to indebtedness for borrowed money of Five Million Dollars ($5,000,000) or greater, whether as borrower or lender, and whether secured or unsecured;
(xiii) any Contract with a notional value of Fifteen Million Dollars ($15,000,000) or greater that involves or relates to any exchange traded, over-the-counter or other hedging (including currency hedging), swap, cap, floor, collar, futures, forward, option or other derivative financial trading activities;
(xiv) any Contract providing for indemnification or any guaranty by the Company or any Company Subsidiary that (i) has not been made in the ordinary course of business or (ii) is material to the Company and any Company Subsidiaries, taken as a whole (in each case with respect to which the Company or any Company Subsidiary has continuing obligations as of its Subsidiaries is bound:the date hereof);
(ixv) leases or subleases under which the Company or the Company Subsidiaries (A) lease or occupy Leased Real Property for manufacturing purposes or in excess of one hundred thousand (100,000) gross square feet and (B) leases, subleases or licenses of any property to a third party for manufacturing purposes or in excess of one hundred thousand (100,000) gross square feet;
(xvi) any Contract establishing a partnership, joint venture or similar third party business enterprise in which the Company or any Company Subsidiaries has (A) an equity interest or the right to acquire an equity interest or (B) a capital commitment or other obligation under such Contract;
(xvii) (A) any Employee Change-of-Control Agreement or (B) any employment, independent contractor or consulting Contract (in each case with respect to which any party thereto has continuing obligations as of the date hereof) with any current or former (1) executive officer of the Company or any of the Company Subsidiaries, (2) member of the Company Board, or (3) employee, independent contractor who is a natural person or consultant of the Company or any of the Company Subsidiaries, in each case providing for an annual base compensation in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(xviii) collective bargaining agreements or other Contracts with any labor union;
(xix) any other Contract under which the consequences of a default or breach or the early termination of which would reasonably be expected to have a Company Material Adverse Effect; and
(xx) all other Contracts required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;Securities Act or disclosed by the Company on a Current Report on Form 8-K, whether or not so filed or disclosed.
(iii) any Each Company Material Contract that (A) imposes any restriction is valid and binding on the right or ability Company and is in full force and effect (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule is valid and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 binding on the date of this Agreement.
other parties thereto (b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 subject to the Bankruptcy and Equity Exception) except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of , (ii) the Company or the and each Company Subsidiary of the Company that is party thereto and, has in all material respects performed all obligations required to the knowledge of the Company, of be performed by it under each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a breach or default on the part of the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to or any Company Material Contract to terminate for default, convenience or otherwise Subsidiary under any such Company Material Contract, nor to the knowledge of the Company, is any except such party threatening to do so, in each case except as has breaches that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to . To the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary Knowledge of the Company, given no other party to any Company Material Contract is in material breach or default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a material breach or default by any such other party thereunder. Neither the Company nor any Company Subsidiary has received any written notice of termination or cancellation under any Company Material Contract, received any written or, 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 Knowledge of the Company, ororal notice of material breach or default under any Company Material Contract that has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract. Neither the Company nor any Company Subsidiary is party to any Contract pursuant to which the terms and conditions thereof or any information or data contained therein are deemed classified pursuant to the knowledge rules and regulations of any Governmental Authority. The Company has furnished or made available to Parent true, correct and complete copies of all Company Material Contracts in effect as of the Company, threatened to do any of the foregoingdate hereof.
Appears in 2 contracts
Sources: Merger Agreement (National Semiconductor Corp), Merger Agreement (Texas Instruments Inc)
Material Contracts. (ai) Section 4.18(aDisclosure Schedule 3.1(o)(i) contains an accurate and complete list of the Contracts to which any of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (are bound that are or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement involve (each, a “Collective Bargaining AgreementMaterial Contract”):
(A) or other works council agreementthe twenty-five (25) largest customers of the Company in September 2016 based on the dollar amount of invoiced monthly recurring revenue;
(ivB) any non-customer Contract with any Governmental Authority (other than Network Agreements);
(C) each Network Agreement;
(D) any Contract with any current employee that either (i) provides base compensation in excess of $200,000 in any calendar year or (ii) entitles such employee to severance;
(E) any non-employee sales representative or sales agent to the extent there has been aggregate compensation to such non-employee since January 1, 2016 (whether paid or accrued as of the date hereof) in excess of $75,000;
(F) a covenant or other restriction that materially limits the ability of the Company to conduct its business, including non-solicitation, non-competition and most-favored nation pricing restrictions, which are not terminable without payment by the Company on sixty (60) days’ notice;
(G) any director or officer of any Seller, the Company, the Company’s Subsidiaries or any of their Affiliates (other than employment agreements with such Persons entered into in the ordinary course of business or plans or agreements set forth on Disclosure Schedule 3.1(p)(i));
(H) the granting of a Lien (other than a Permitted Lien) upon any material assets of the Company or its Subsidiaries, or a loan agreement, note, mortgage, indenture, security agreement, guaranty, pledge or other agreement relating to Indebtedness (other than intercompany indebtedness and guarantees and accounts receivable or accounts payable in the ordinary course and any performance bonds or other security set forth on Disclosure Schedule 3.1(l));
(I) the acquisition of an equity interest in, or of all or substantially all of the assets or business of, any other Person entered into on or after January 1, 2013;
(J) indemnification of any Person with respect to losses relating to any current or former business of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory standard indemnification provisions entered into in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries);
(viK) any a joint venture, venture or partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(viiL) any Lease;
(M) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with between the Company or any Subsidiary of the Company, given on the one hand, and any Seller or any Affiliate of any Seller, on the other hand (including any Network Underlying Rights) (other than employment, equity, indemnification or service agreements entered into in the ordinary course of business consistent with past practice);
(N) any customer Contract involving an indefeasible right of use or similar right to use dark or lit Network Fiber involving an annual payment or amortized revenue totaling more than $100,000 (where not already set forth on Disclosure Schedule 3.1(o)(i));
(O) all Contracts under which the Company is lessee of or holds, uses or operates any tangible property (other than real property) that is owned by any other Person, other than such Contracts entered into in the ordinary course of business consistent with past practice and not in excess of $100,000 (the “Tangible Property Leases”) (where not already set forth on Disclosure Schedule 3.1(o)(i));
(P) all Contracts (other than customer Contracts) under which the Company is lessor of or permits any third party to hold, use or operate any tangible property (other than real property) owned or controlled by the Company, except for any Contract under which the aggregate annual rental payments do not exceed $100,000 and the total aggregate rental payments do not exceed $500,000; or
(Q) any agreement not made in the ordinary course of business and that is material to the business of the Company, except as otherwise listed in response to clauses (A) through (P) above.
(ii) Except as set forth on Disclosure Schedule 3.1(o)(ii), all Material Contracts are valid, binding and enforceable against the Company in accordance with their terms and, to the Knowledge of the Company, are valid, binding and enforceable against each other party thereto, and are in full force and effect. The Company has performed all material obligations imposed on it under such Material Contracts, and neither the Company nor any other party thereto is in material default thereunder, nor has there occurred any event that with notice or lapse of time, or both, (a) would constitute a material default by the Company or, to the Knowledge of the Company, any other party thereunder, (b) would allow or give rise to the limitation, revocation, modification, or termination of any Material Contract or (c) would result in the impairment of the rights of the Company under any Material Contract; nor has the Company or any Subsidiary received any notice regarding the matters described in (a) through (c). There is no pending disagreement or dispute with any other party to any Material Contract, nor is there any pending request or process for amendment of any Material Contract. Accurate and complete copies of each written Material Contract (and written summaries of the Company terms of any intention oral Material Contract) have been made available to Buyer. The Company has not received any notification that any party to a Material Contract intends to cancel, terminate terminate, materially modify, or substantially curtail its relationship with the Company refuse to perform such Material Contract, or any Subsidiary of the Company, or, written notification that a party intends to the knowledge of the Company, threatened to do any of the foregoingrefuse renew such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Material Contracts. (a) Section 4.18(a) 4.17 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, lists each of the following Contracts written contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any Subsidiary is a party affecting the obligations of its Subsidiaries any party thereunder) to which the Company or any Subsidiary is a party or by which any of their respective properties or assets are bound (each such contract and agreement, being a “Material Contract”). Notwithstanding anything below, “Material Contract” shall not include any contract that (1) is terminable upon 90 days or less notice without a penalty premium, (2) will be fully performed or satisfied as of or prior to Closing, (3) is a Company Lease or (4) is a Ground Lease.
(a) all agreements that call for aggregate payments by the Company or any Subsidiaries under such contract of its more than $5,000,000 over the remaining term of such contract;
(b) all agreements that call for annual aggregate payments by the Company or any Subsidiaries under such contract of more than $1,000,000 over the remaining term of such contract;
(c) any agreement that contains any non-compete or exclusivity provisions with respect to any line of business in which the Company or any Subsidiary is bound:currently engaged or geographic area with respect to the Company or any Subsidiary, or that purports to restrict in any material respect the right of the Company or any Subsidiary to conduct any line of business in which the Company or any Subsidiary is currently engaged or to compete with any Person or operate in any geographic area or location in which the Company or any Subsidiary may conduct business;
(d) any material partnership, limited liability company agreement, joint venture or other similar agreement entered into with any Third Party;
(e) any agreements for the pending sale, option to sell, right of first refusal, right of first offer or any other contractual right to sell, dispose of, or master lease, by merger, purchase or sale of assets or stock or otherwise, any real property including any Company Property or any asset that if purchased by the Company or any Subsidiary would be a Company Property;
(f) any contract or agreement pursuant to which the Company or any Subsidiary agrees to indemnify or hold harmless any director or executive officer of the Company or any Subsidiary (other than the organizational documents of the Company or the Subsidiaries);
(g) any loan agreement, letter of credit, indenture, note, bond, debenture, mortgage, pledge agreement, securities agreement or any other document, agreement or instrument evidencing a capitalized leased obligation or other indebtedness of, for the benefit of, or payable to the Company or any Subsidiary or any guaranty thereof in excess of $5,000,000;
(h) any agreement concerning an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to which the Company or any Subsidiary is a party;
(i) any employment agreements, severance, change in control or termination agreements with officers of the Company or any Subsidiary; or
(j) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding ). Except as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants would not to ▇▇▇;
(ix) any Contract that is reasonably be expected to result in the payment or receipt of more than $30,000,000 by the have a Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw materialMaterial Adverse Effect, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, any Company Material Contract, in (ii) none of the Company nor any material respect. No Subsidiary has received any claim of default under any such agreement, and (iii) no event has occurred which would result in a breach or not occurred through the Company’s violation of, or a default under, any of its Subsidiaries’ action Material Contract (in each case, with or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that with without 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 both). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Each Company , each Material Contract is a valid valid, binding and binding obligation of enforceable in accordance with its terms and is in full force and effect with respect to the Company or the Subsidiary of the Company that is party thereto its Subsidiaries, as applicable, and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectparties hereto.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Centro Properties LTD), Merger Agreement (New Plan Excel Realty Trust Inc)
Material Contracts. (a) Neither the Company, its Subsidiaries, nor, to the knowledge of the Company, any other party, is in material default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Contracts to which it is a party; and, to the knowledge of the Company, there has not occurred any event that, with the lapse of time or giving of notice or both, could constitute such a material default under any Material Contract. Each of the Material Contracts is enforceable against the Company or applicable Subsidiary of the Company in accordance with its terms and, to the Company’s knowledge, is enforceable against other parties to such Material Contract in accordance with its terms.
(b) Section 4.18(a3.15(b) of the Company Disclosure Schedule sets forth a true and complete list, list as of the date of this AgreementAgreement of
(i) all Contracts or letters of intent entered into after January 1, 2008, and all currently effective Contracts entered into before that date, regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise to which the Company or any Subsidiary of the following Company is a party;
(ii) all currently effective credit agreements, indentures, mortgages, security agreements and other Contracts related to any indebtedness for borrowed money of the Company or any of its Subsidiaries;
(iii) all joint venture or other similar Contracts to which the Company or any Subsidiary of the Company is a party;
(iv) all currently effective Contracts (including related Contracts) under which the Company or any Subsidiary of the Company has advanced or loaned or agreed to advance or loan to any other Person (together with such Person’s Related Persons) $75,000 or more;
(v) all currently effective guarantees by the Company or any Subsidiary of the Company of any obligations or liabilities of any other Person;
(vi) all Contracts or groups of related Contracts to which the Company or any of its Subsidiaries is a party the performance of which (i) since January 1, 2010 involved annual payments or receipts by the Company and its Subsidiaries of an aggregate amount in excess of $75,000, or would reasonably be expected to involve payments or receipts by the Company and its Subsidiaries after December 31, 2010 of an aggregate amount in excess of $75,000, and (ii) are not cancelable by the Company or any of its Subsidiaries on 60 days’ or less notice without premium or penalty;
(vii) all currently effective exclusive sales representative Contracts to which the Company or any Subsidiary of the Company is a party;
(viii) all currently effective Contracts under which the Company or any Subsidiary of the Company has granted any Person registration rights (including demand and piggy-back registration rights);
(ix) all currently effective Contracts purporting to restrict or prohibit the Company or any Subsidiary of the Company from engaging or competing in any business or engaging or competing in any business in any geographic area;
(x) all currently effective labor agreements, collective bargaining agreements or other labor related Contracts (including work rules and practices) to which the Company or any Subsidiary is a party with respect to any labor union, labor organization, trade union, works council or similar organization or association of employees;
(xi) all currently effective IP Contracts to which the Company or any Subsidiary of the Company is a party other than standard license agreements for commercially-available, off-the-shelf software having an acquisition price of less than $75,000 in the aggregate for each such software product or group of related software products;
(xii) any Contract which provides for termination, acceleration of payment or other special rights upon the occurrence of a change in control of the Company or any Subsidiary of the Company;
(xiii) each Contract to which the Company or any Subsidiary is a party with any Governmental Entity;
(xiv) any Contract that is currently effective or that was executed after January 1, 2008 which provides for the purchase, sale or exchange of, or option to purchase, sell or exchange any real property to which the Company or any Subsidiary of the Company is a party;
(xv) any currently effective Contract relating to the development or construction of, or additions or expansions to, any real property that would cause the Company and its Subsidiaries to exceed the capital budget for such property listed in Section 3.15(b)(xv) of the Company Disclosure Schedule;
(xvi) any Contract relating to the operation or management of any Owned Real Property or any Leased Real Property to which the Company or any Subsidiary of the Company is a party;
(xvii) any hotel or other management agreement or franchise agreement to which the Company or any Subsidiary of the Company is a party;
(xviii) any Contract under which the Company or any of its Subsidiaries is bound:
(i) has agreed not to bring Litigation against any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) Person or under which any Contract that is of the type that would be required Person has agreed not to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) bring any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to Litigation against the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(xxix) any Contract relating to the supply of any item used by Material Artwork to which the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 a 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of ;
(xx) all Contracts obligating the Company or the any Subsidiary of the Company that is party thereto andto indemnify any current or former director, to the knowledge officer, partner, member, trustee or employee of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company; and
(xxi) all other Contracts which are material to the Company and its Subsidiaries taken as a whole. The Contracts referenced in this Section 3.15(b) are referred to herein collectively as the “Material Contracts”). The Company has furnished to Parent a correct and complete copy of each Material Contract. For purposes of this Agreement, given notice a Contract will be considered to be currently effective if any Person currently has or in the future may have any right, remedy, benefit, obligation or liability thereunder.
(c) No Material Contract will, by its terms, (i) terminate or accelerate as a result of the transactions contemplated hereby or (ii) require any consent from any party thereto in order to remain in full force and effect immediately after the Effective Time.
(d) Section 3.15(d) of the Company Disclosure Schedule (i) lists all currently effective Contracts pursuant to which any Person has a right to a payment from the Company or any of its Subsidiaries based upon any current or future franchise, management, incentive or other fee earned by or paid to the Company or any Subsidiary of its Subsidiaries and (ii) identifies the specific current or future property or properties to which the Contract relates and the amount of the fee to which such Person has a right pursuant to the Contract.
(e) Section 3.15(e) of the Company Disclosure Schedule sets forth a list, as of any intention to cancelthe date of this Agreement, terminate or substantially curtail its relationship with of all agreements of the Company or its Subsidiaries with any Subsidiary executive officer or director of the Company or its Subsidiaries. No officer or director of the Company, orits Subsidiaries, or any “associate” (as such term is defined in Rule 14a-1 under the Exchange Act) of any such officer or director, has any interest in any contract or property (real or personal, tangible or intangible), used in, or pertaining to the knowledge business of the Company, threatened Company or its Subsidiaries which interest would be required to do any be disclosed pursuant to Item 404(a) of Regulation S-K promulgated by the foregoingSEC.
Appears in 2 contracts
Sources: Purchase Agreement (Hospitality Properties Trust), Merger Agreement (Sonesta International Hotels Corp)
Material Contracts. (a) Except as set forth in Section 4.18(a) 3.19 of the Company Disclosure Schedule sets forth a true and complete listfor this Agreement and the Company Benefit Plans, as of the date of this Agreementhereof, of the following Contracts to which neither the Company or nor any of its Subsidiaries is a party to or bound by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SECExchange Act) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that of the following: (A) imposes any restriction on the right contract that purports to limit, curtail or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its existing or future Subsidiaries having an outstanding principal amount or affiliates to compete in excess any geographic area or line of $10,000,000;
(v) any Contract that provides for business or restrict the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of persons to whom the Company Disclosure Schedule and acquisitions or dispositions any of inventory in the ordinary course of businessits existing or future Subsidiaries or affiliates may sell products or deliver services, (B) loan or business (whether by mergercredit agreement, sale of stockmortgage, sale of assets or otherwise) and that contains representationsindenture, covenants, indemnities note or other obligations (including “earnout” contract or other contingent payment obligations) outstanding as instrument evidencing indebtedness for borrowed money by the Company or any of the date of this Agreement that are material 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;
, (viC) any joint venturemortgage, partnershippledge, limited liability company or strategic alliance agreement security agreement, deed of trust or other similar Contract with contract granting a third party;
(vii) Lien on any Contract that obligates property or assets of the Company or any of its Subsidiaries to make any loansSubsidiaries, advances (D) (x) customer or capital contributions toclient contract, or investments in, any person;
(viiiy) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract supplier contract that is expected reasonably likely to result in the payment or receipt of more than $30,000,000 involve annual purchases by the Company and its Subsidiaries in 2016;
excess of $20,000 (xin the aggregate) in any Contract relating of fiscal years 2011, 2012 or 2013, (E) contract (other than customer, client or supply contracts) that involve consideration (whether or not measured in cash) of greater than $20,000, (F) contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities, (G) to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole; and
, (xi1) product or intellectual property design or development contract, (2) license or royalty contract or (3) contract granting a right of first refusal or first negotiation or “most favored nation” status, (H) investment banker engagement or similar agreement pursuant to which any Contract person would be entitled to payment in connection with the Merger, (I) contract which would prohibit or delay the consummation of any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Scheduletransactions contemplated by this Agreement, Contracts that, in and (J) commitment or agreement to enter into any of the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All foregoing (all contracts of the types referred to type described in clauses (ithis Section 3.19(a) through (xi) above, are being referred to herein as “Company Material Contracts.” ”). Neither the Company nor any of its Subsidiaries is a party to, or otherwise bound by or subject to, any agreement, contract, commitment or understanding, oral or written, regarding the sale, license or other transfer of rights or interests in any of the products listed in Section 3.19(a)(1) of the Company Disclosure Schedule. The Company has made available provided to Parent prior to the date of this Agreement a correct and complete and correct copy copies of each Company Material Contract in existence as in effect on of the date of this Agreementhereof, together with any and all amendments and supplements thereto, “side letters” and similar documentation relating thereto.
(b) Neither the Each Company nor Material Contract to which any Subsidiary of the Company or its Subsidiaries is a party or by which any of them is bound is in breach full force and effect and constitutes the valid and binding obligation of the Company or default under such Subsidiary, as the terms of any Company Material Contract case may be, and, to the knowledge of the Company, constitutes the valid and binding obligation of the other parties thereto. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract. Section 3.19(b)(i) of the Company Disclosure Schedule sets forth a correct and complete list, in any material respect. No event has occurred or not occurred through as of the Company’s date hereof, of each current customer of the Company or any of its Subsidiaries’ action or inaction orSubsidiaries that has provided notice of an intention (A) to terminate its contract(s) with the Company and/or a Company Subsidiary, (B) not to renew its contract(s) with the knowledge Company and/or a Company Subsidiary at the end of the Companycurrent contract term(s), through the action (C) to substantially reduce its business under its contract 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract (D) to terminate for default, convenience its contract(s) or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its business relationship with the Company or any and/or a Company Subsidiary as a result of the Company, given notice to the Company announcement or any Subsidiary consummation of the Company of any intention to cancel, terminate or substantially curtail its relationship with transactions contemplated by the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoingAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Cardionet Inc), Merger Agreement (Biotel Inc.)
Material Contracts. None of the Target Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (a) Section 4.18(a) any employment, severance, termination, consulting, or retirement Contract providing for aggregate payments to any Person in any calendar year in excess of the Company Disclosure Schedule sets forth a true and complete list$150,000, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(iib) any Contract that (A) imposes relating to the borrowing of money by any restriction on Target Entity or the right or ability of the Company, guarantee by any of its Subsidiaries or any Affiliate Target Entity of any such obligation (other than Contracts evidencing deposit liabilities, purchases of them federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of depository institution Subsidiaries, trade payables and Contracts relating to compete with borrowings or guarantees made in the ordinary course of business) in excess of $2,000,000, (c) any other person Contract which prohibits or restricts any Target Entity from engaging in any business activities in any geographic area, line of business or geographic region otherwise in competition with any other Person, (d) any Contract between or that among Target Entities, (e) any Contract relating to the purchase or sale of any goods or services by a Target Entity (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract not in excess of $500,000 or involving Loans, borrowings or guarantees originated or purchased by any Target Entity in the ordinary course of business), (f) any Contract which obligates any Target Entity (or, following the Effective Time will restrict consummation of the ability Merger, Buyer or any of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a an exclusive or preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
basis, (iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(vg) any Contract that provides for the acquisition which requires referrals of business or disposition requires any Target Entity to make available investment opportunities to any person on a priority or exclusive basis, (h) any Contract which grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of any assets Target Entity, (i) any Contract which limits the payment of dividends by any Target Entity, (j) any Contract pursuant to which any Target Entity has agreed with any third parties to become a member of, manage or control a joint venture, partnership, limited liability company or other than obligations set forth in the capital expenditure budget set forth on Section 6.1(hsimilar entity, (k) any Contract pursuant to which any Target Entity has agreed with any third party to a change of the Company Disclosure Schedule control transaction such as an acquisition, divestiture or merger and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that which contains representations, covenants, indemnities or other obligations (including indemnification, “earnoutearn-out” or other contingent payment obligations) outstanding that are still in effect, (l) any Contract which relates to Intellectual Property of Target (including permitting the use of the name “Sterling Bank” or any variant thereof), (m) any Contract between any Target Entity, on the one hand, and (1) any officer or director of any Target Entity, or (2) to the Knowledge of Target, any (x) record or beneficial owner of five percent (5%) or more of the voting securities of Target, (y) Affiliate or family member of any such officer, director or record or beneficial owner or (z) any other Affiliate of Target, on the other hand, except those of a type available to employees of Target generally, or (n) any other Contract or amendment thereto that would be required to be filed as an exhibit to a SEC Report filed by Target with the SEC as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract together with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, all Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses Sections 4.11 and 4.15(a), the “Target Contracts”). With respect to each Target Contract: (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a complete Contract is valid and correct copy of each Company Material Contract as in effect binding on the date of this Agreement.
(b) Neither the Company nor any Subsidiary of the Company is applicable Target Entity, enforceable against it in breach of or default under the accordance with its terms of any Company Material Contract in full force and effect and, to the knowledge Knowledge of Target, is valid and binding on the Company, other parties thereto; (ii) no Target Entity is in Default thereunder; (iii) no Target Entity has repudiated or waived any material provision of any such Contract; and (iv) no other party to any Company Material such Contract is is, to the Knowledge of Target, in breach of or default under the terms of any Company Material Contract, Default in any material respectrespect or has repudiated or waived any material provision thereunder. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge All of the Company, through the action or inaction indebtedness of any third party, that with notice Target Entity for money borrowed is prepayable at any time by such Target Entity without penalty 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectpremium.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Sterling Bancshares Inc), Merger Agreement (Comerica Inc /New/)
Material Contracts. (a) Subsections (i) through (xi) of Section 4.18(a3.19(a) list the following types of contracts and agreements to which the Company or any Subsidiary is a party (the “Company Material Contracts,” it being agreed that such contracts and agreements are not required to be set forth in Section 3.19(a) of the Company Disclosure Schedule sets forth a true and complete list, as of unless expressly so indicated in the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:applicable subsection below):
(i) any each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of with respect to the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany and its Subsidiaries;
(ii) any Contract that (A) imposes any restriction on the right each contract and agreement which is likely to involve payment or ability of the Company, any of its Subsidiaries receipt to or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of by the Company or any of its Subsidiaries having an outstanding of consideration of more than $100 million, in the aggregate, over the remaining term of such contract or agreement;
(iii) all material joint venture contracts or material partnership arrangements (and all of such contracts and agreements are set forth in Section 3.19(a)(iii) of the Disclosure Schedule and have been provided to Parent prior to the date hereof);
(iv) other than contracts and agreements referred to in clause (a)(i), all contracts and agreements evidencing indebtedness involving principal amount in excess of $10,000,000100 million;
(v) all contracts and agreements that limit, or purport to limit, the ability of the Company or any Contract that provides for Subsidiary of the acquisition Company to compete in any line of business or disposition with any person or entity or in any geographic area or during any period of any assets time (other than obligations and all of such contracts and agreements are set forth in the capital expenditure budget set forth on Section 6.1(h3.19(a)(v) of the Company Disclosure Schedule and acquisitions have been provided to Parent prior to the date hereof);
(vi) all material contracts and agreements concerning Intellectual Property or dispositions IT Assets to which the Company or any of inventory its Subsidiaries is a party or beneficiary or by which the Company or any of its Subsidiaries, or any of its properties or assets, may be bound, including all (A) licenses of Intellectual Property by the Company or any of its Subsidiaries to any person, (B) licenses of Intellectual Property by any person to the Company or any of its Subsidiaries, and (C) contracts and agreements between any person and the Company or any of its Subsidiaries relating to the transfer, development, maintenance or use of Intellectual Property or IT Assets other than, in the ordinary course each case, licenses of business) Off-the-Shelf Software licensed pursuant to shrink-wrap or business click-wrap agreements (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as all of the date foregoing, collectively, the “Company IP Agreements”). For purposes hereof, “Off-the-Shelf Software” shall mean all software used or held for use by the Company or any of this Agreement its Subsidiaries that are is commercially available off-the-shelf software that (x) is not material to the Company or any of its Subsidiaries;
, (viy) has not been modified or customized for the Company or any joint ventureof its Subsidiaries, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
and (viiz) any Contract that obligates is licensed to the Company or any of its Subsidiaries to make any loansfor a one-time or annual fee of $250,000 or less;
(vii) all contracts and agreements or interest rate, advances currency or capital contributions tocommodities hedging agreements, in each case in connection with which the aggregate actual or investments in, any personcontingent obligations of the Company and its Subsidiaries under such contract are greater than $20 million;
(viii) any Contract all contracts and agreements entered into after December 31, 2005 or not yet consummated, in each case for the acquisition or disposition, directly or indirectly (A) granting the Company by merger, consolidation, combination or one amalgamation), of its Subsidiaries any right to use any material Intellectual Property assets (other than licenses in respect of commercially available softwareassets purchased pursuant to capital expenditures) or (B) permitting any third capital stock or other equity interests of another person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included for aggregate consideration under such contract in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇excess of $50 million;
(ix) all contracts and agreements between or among the Company or any Contract of its Subsidiaries, on the one hand, and any of their respective affiliates (other than the Company or any of its Subsidiaries or non-controlled joint ventures), on the other hand, that is expected to result in the payment or receipt involve payments of more than $30,000,000 by 2.5 million in any one year, other than any contracts and agreements required to be listed in Section 3.9 of the Company and its Subsidiaries in 2016Disclosure Schedule or otherwise relating to compensation or employee benefits;
(x) any Contract all contracts and agreements relating to the supply leases of any item used by railcars and other rolling stock involving consideration in excess of $10 million on an annual basis; and
(xi) all other contracts and agreements, whether or not made in the Company or a Subsidiary ordinary course of the Company that is a sole source of supply of any raw materialbusiness, component or service that is which are material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier , or Top Customerthe conduct of their respective businesses, other thanor the absence of which would, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, individually or in the aggregate, do not represent purchases or sales, respectively, constituting have a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 AgreementAdverse Effect.
(b) Neither the Company nor any Subsidiary of the Company has received written notice of any claim of default under or cancellation of any Company Material Contract and neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract andwhere such claim of default, cancellation, breach or default has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, as of the date hereof, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 Contract where such breach of or default under the terms of any Company Material Contracthas had, in each case except as has not had and or 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 binding obligation of the Company or the Subsidiary of the Company that which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, 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 knowledge discretion of the Company, threatened with respect court before which any proceeding therefor may be brought. The Company shall make available to any Parent true and complete copies of all Company Material Contract, and neither the Company nor Contracts (other than any of its Subsidiaries has received the contracts described in subclause (xi) of this Section 3.19), including any written notice of the intention of any other party to any Company Material Contract to terminate for defaultamendments thereto, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to promptly as practicable following the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with and in any event within 30 days after 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 foregoingdate hereof.
Appears in 2 contracts
Sources: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Rohm & Haas Co)
Material Contracts. (a) Subsections (i) through (viii) of Section 4.18(a) 3.16 of the Company Disclosure Schedule sets forth contain a true and complete list, as of the date of this Agreement, list of the following Contracts types of contracts and agreements to which the Company or any of its Subsidiaries is a party (such contracts, agreements and arrangements as are required to be set forth in Section 3.16(a) of the Company Disclosure Schedule being the "Material Contracts"):
(i) each contract and agreement which is likely to involve consideration of more than $25,000, in the aggregate, over the remaining term of such contract;
(ii) all material broker, distributor, dealer, franchise, agency, sales promotion, market research, marketing, consulting, advertising, transfer, software, and research and development contracts or by agreements to which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsparty;
(iii) any collective bargaining agreementall clinical trial or clinical research organization, labor union contract manufacturing or trade union agreement (eachsupply, a “Collective Bargaining Agreement”) collaboration, and guarantee contracts or other works council agreement;
(iv) any agreement relating agreements to Indebtedness of which the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with is a third party;
(viiiv) all management contracts (excluding contracts for employment) and contracts with other consultants, including any Contract that obligates contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries to which the Company or any of its Subsidiaries is a party;
(v) all contracts and agreements evidencing indebtedness for borrowed money in excess of $10,000;
(vi) all material contracts and agreements with any Governmental Authority to make which the Company or any loans, advances or capital contributions toof its Subsidiaries is a party;
(vii) all contracts and agreements that limit, or investments inpurport to limit, in any person;material respect the ability of the Company or its Subsidiaries to compete in any line of business or with any person or entity or in any geographic area or during any period of time; and
(viii) all material contracts or arrangements that result in any Contract (A) granting person or entity holding a power of attorney from the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 any of its Subsidiaries that relates to the action Company, its Subsidiaries or inaction their respective businesses.
(b) Except as would not prevent or materially delay consummation 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 has not had Merger and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Each Company , (i) each Material Contract is a legal, valid and binding obligation agreement, the Company is not in material default under any Material Contract and none of the Material Contracts has been canceled by the other party; (ii) to the Company's knowledge, no other party is in breach or violation of, or default under, any Material Contract; (iii) the Company or and its Subsidiaries are not in receipt of any claim of default under any such agreement; and (iv) neither the Subsidiary execution of this Agreement nor the consummation of the Company that is party thereto andMerger shall constitute a default, give rise to the knowledge cancellation rights, or otherwise adversely affect any of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to 's rights under any Company Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts, and neither the Company nor including any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectamendments thereto.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Osi Pharmaceuticals Inc), Merger Agreement (Cell Pathways Inc /De)
Material Contracts. (a) Section 4.18(a3.17(a) of the Company Disclosure Schedule sets forth a true and complete list, list as of the date of this Agreement, Agreement of each of the following Contracts Company Contracts, together with all amendments thereto: (i) each Company Contract that restricts in any material respect the ability of the Company or any of its Subsidiaries or any of the Company’s current or future Affiliates to sell products in or otherwise compete in any geographic area or line of business; (ii) any Company Contract pursuant to which any Person provides manufacturing services involving the Product, any Pipeline Product or any product using Nab® Technology for the Company or any of its Subsidiaries, (iii) each Company Contract pursuant to which the Company or any of its Subsidiaries grants or is granted any license to use or exploit, covenant not to ▇▇▇, immunity from suit or similar rights under any Intellectual Property of a third party that, in each case, is related to the Product, any Pipeline Product, or by the Nab® Technology; (iv) each Company Contract pursuant to which raw materials are supplied, or equipment is supplied or leased, to the Company or any of its Subsidiaries is bound:
(iexcluding purchase orders given or received in the ordinary course of business), in each case relating to any key component or manufacturing involved in the compounding or formulation of the Product or any products using Nab® Technology; (v) each Company Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses relating to the Product, any Pipeline Product, or the Nab® Technology; (vi) each Company Contract providing for future performance by the Company or any of its Subsidiaries in consideration of amounts previously paid, the balance of which exceeds $5,000,000 as of the date of this Agreement; and (vii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SECSecurities Act) that were required to be filed with or any furnished to the SEC prior to the date of this Agreement. Each Company Contract that is (A) of the type that would be described in Section 3.17(a) of the Disclosure Schedule, whether or not disclosed in response to this Section 3.17(a), or referred to in Section 3.17(b), whether or not provided or publicly filed, and (B) entered into after the date of this Agreement and of the type required to be disclosed under Item 404(adescribed in Section 3.17(a) or referred to in Section 3.17(b), whether or not provided or publicly filed of Regulation S-K promulgated under the Exchange Act;Disclosure Schedule if such Company Contract were in effect as of the date of this Agreement, is referred to herein as a “Material Contract.”
(iib) any Contract that (AThe Company has provided to Parent or publicly filed with the SEC true and complete copies of each Company Contact referred to in Section 3.17(a) imposes any restriction on the right or ability and each of the Companyfollowing Company Contacts, any in each case that are in effect as of its Subsidiaries the date of this Agreement: (i) each Company Contract with customers (excluding purchase orders given or any Affiliate received in the ordinary course of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic areabusiness) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or under which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount received in excess of $10,000,000;
(v) any Contract that provides for the acquisition 10,000,000 in 2009 or disposition is expected to receive in excess of any assets (other than obligations set forth $10,000,000 in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company 2010 or any of its Subsidiaries;
year thereafter; (viii) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar each Company Contract with a third party;
(vii) any Contract that obligates pursuant to which the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting occupies Leased Real Property and under which the Company or one any of its Subsidiaries is required to pay an annual rental in excess of $5,000,000 in 2010 or any right to use year thereafter; and (iii) each Company Contract for any material Intellectual Property joint venture (whether in partnership, limited liability company or other than licenses in respect of commercially available software) organizational form), co-promote agreements or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license co-branding agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing distribution agreements), coexistence ) or agreements and covenants not pursuant to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by which the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its SubsidiariesSubsidiaries permitted distribution of the Product or the Pipeline Products under another party’s name or trademarks.
(c) All Material Contracts are valid and in full force and effect and enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ action or inaction orrights and general equity principles, except to the knowledge of extent that (i) such Material Contracts have previously expired or otherwise terminated in accordance with their terms or (ii) 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, failure to be in each case except as has not had full force and effect would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of Neither the Company or the Subsidiary nor any of the Company that is party thereto andits Subsidiaries, nor, to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect any counterparty to any Company such Material Contract, and neither has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default under, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under the provisions of any Material Contract, except in each case for those violations or defaults which would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice of the intention of that it has breached, violated or defaulted under any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 . Prior to the date hereofof this Agreement, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or and its Subsidiaries have not received any Subsidiary of the Company, given notice written claims for indemnification pursuant 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 foregoing2007 Separation and Distribution Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Abraxis BioScience, Inc.), Merger Agreement (Celgene Corp /De/)
Material Contracts. (a) Section 4.18(a3.14(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, lists each of the following types of Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which as of the Company or any date of its Subsidiaries is bound:this Agreement (such Contracts, the “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to Company or any Contract Company Subsidiary that is of the type that would be has been, or was required to be disclosed under Item 404(a) of Regulation Sbe, filed with the SEC with the Company’s Annual Report on Form 10-K promulgated under for the Exchange Actyear ended July 31, 2014 or any SEC Reports filed after the date of filing of such Form 10-K until the date hereof;
(ii) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets providing for annual payments by the Company or any Company Subsidiary of $3,000,000 or more and is not cancelable without penalty or further payment and without more than 120 days’ notice;
(iii) any Contract with a customer of the Company or any Company Subsidiary which involves or is reasonably likely to involve annual payments of more than $10,000,000 (it being understood that the Company is not making any representation or warranty as to the actual amount of future payments to be received under any such Contract);
(iv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $50,000,000 or more, other than (A) imposes accounts receivable and accounts payable in the ordinary course of business and (B) loans to direct or indirect wholly-owned Company Subsidiaries;
(v) with respect to a joint venture, partnership or other similar arrangement that is material to the business of the Company and the Company Subsidiaries, taken as a whole, any restriction on Contract that relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company or any of the Company Subsidiaries in, any such joint venture, partnership or other similar arrangement;
(vi) any Contract containing any covenant materially limiting the right or ability of the Company, any of its Subsidiaries Company or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates Company Subsidiary to engage in any line of business or to compete with any person in any geographic arealine of business;
(vii) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on Contract containing a preferential or exclusive basis or which contains “most favored nation” rights clause or similar rightsother term providing preferential pricing or treatment to a third party that is not cancelable without penalty or further payment and without more than 120 days’ notice;
(iiiviii) any collective bargaining agreement, labor union contract Contract that grants any right of first refusal or trade union agreement (each, a “Collective Bargaining Agreement”) right of first offer or other works council agreement;
(iv) any agreement relating to Indebtedness similar right or that limits the ability of the Company or any of its the Company Subsidiaries having to sell, transfer, pledge or otherwise dispose of assets or any business with an outstanding principal amount aggregate value in excess of $10,000,00025,000,000;
(vix) any Collective Bargaining Agreement;
(x) any Contract that provides for relates to the acquisition or disposition of any business, assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business properties (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as for aggregate consideration under such Contract in excess of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract $25,000,000 (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) that was entered into after July 31, 2013, or (B) permitting pursuant to which any third person to useearn-out, enforce indemnification or register any material Intellectual Propertydeferred or contingent payment obligations remain outstanding, including any material license agreements (other than customary non-exclusive licensing provisions included in customereach case, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt excess of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole5,000,000; and
(xi) any Contract that is a license, royalty or similar Contract with any Top Supplier respect to Intellectual Property (other than generally commercially available “off-the-shelf” software programs) that would reasonably be expected to involve aggregate payments by or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of to the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority any Company Subsidiary of purchases from such Top Supplier $5,000,000 or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior more or that is otherwise material to the date of this Agreement Company and the Company Subsidiaries, taken as a complete and correct copy of each Company Material Contract as in effect on the date of this Agreementwhole.
(b) Neither True, correct and complete copies of each Material Contract have been made available to Parent. Except as would not have a Company Material Adverse Effect, (i) each Material Contract is valid, binding and in full force and effect with respect to the Company nor any Subsidiary of and the Company is in breach of or default under the terms of any Company Material Contract Subsidiaries party thereto and, to the knowledge Knowledge of the Company, each other party thereto, (ii) none of the Company or any Company Subsidiary has received any written claim of breach or default under or cancellation of any Material Contract and none of the Company or any Company Subsidiary is in breach or violation of, or default under, any Material Contract (iii) to the Knowledge of the Company, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, Contract and (iv) to the knowledge Knowledge of the Company, through neither 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 Company nor any Company Subsidiary has received, as of the date of this Agreement, any written notice from any person that such person intends to terminate or not renew any Material Contract, in each case except .
(c) Except for such matters as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries Company Subsidiary is or, since August 1, 2013, has received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultbeen, convenience or otherwise any Company Material Contract, nor and to the knowledge Knowledge of the Company, none of their respective officers or directors is any such party threatening to do soor, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January since August 1, 2016 to the date hereof2013, has been, suspended or debarred from doing business by any Governmental Authority or declared nonresponsible or ineligible for government contracting, and no Top Supplier such suspension or Top Customer debarment action 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 foregoingbeen commenced.
Appears in 2 contracts
Sources: Merger Agreement (Danaher Corp /De/), Merger Agreement (Pall Corp)
Material Contracts. (a) Section 4.18(a) 5.19 of the Company Disclosure Schedule sets forth a true and complete list, as list of the date of this Agreement, of the following Contracts each Material Contract to which the Company or any of its Subsidiaries is a party to or by which bound that is in effect as of the date of this Agreement and the Company has made available to Parent, or any publicly filed with the SEC, a true and complete copy of its Subsidiaries is bound:
each such Material Contract. For purposes of this Agreement, “Material Contract” shall mean: (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the 1934 Act), whether or not filed by the Company with the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
, (ii) any Contract that employment, severance or consulting agreement (Ain each case with respect to which the Company has continuing obligations as of the date hereof) imposes with any restriction on the right current or ability former (x) executive officer or management employee of the Company, any (y) member of its Subsidiaries or any Affiliate the Board of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) Directors, or (Bz) obligates employee of the Company or its Subsidiaries (or following the Effective Timewho receives an annual base salary in excess of $150,000, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) that purports to limit in any agreement relating to Indebtedness material respect the right of the Company or any of its Subsidiaries having an outstanding principal amount (or, at any time after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell, supply or distribute any products or services of or to any other Person or in excess any geographic region, (B) engage in any line of $10,000,000;
business or (vC) compete with or to obtain products or services from any Contract that provides for Person or limiting the acquisition or disposition ability of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions Person to provide products or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material services to the Company or any of its Subsidiaries;
, (iv) any agreement 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 with a fair market value in excess of $500,000 individually, (v) any partnership or joint venture agreement or any agreement with a selling partner, in each case that is material to the Company and its Subsidiaries taken as a whole, (vi) any joint venturemortgages, partnershipindentures, limited liability company guarantees, loans or strategic alliance agreement credit agreements, security agreements or other similar Contract with a third party;
Contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $1,000,000, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned Subsidiaries of the Company, (vii) any Contract employee collective bargaining agreement or other agreement with any labor union, (viii) any agreement that obligates by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries, (ix) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to make own, operate, sell, transfer, pledge or otherwise dispose of any loansmaterial amount of assets or businesses, advances (x) each Lease involving annual payments by the Company or capital contributions toany of its Subsidiaries in excess of $100,000, or investments in, any person;
(viiixi) any other Contract under which the Company or any of its Subsidiaries is obligated to make payment or incur costs in excess of $500,000 in any year and which is not otherwise described in clauses (Ai)-(x) granting above, (xii) the Contract listed on Section 5.19(xii) of the Company Disclosure Schedule and (xiii) any material Contract pursuant to which the Company or one of its Subsidiaries licenses or otherwise grants to a Third Party, or receives a license or grant from a Third Party of, any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is rights material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any one of its Subsidiaries’ action business as currently conducted (other than Contracts granting rights to readily available hardware and COTS). Except for breaches, violations 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 has not had and defaults which would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Each Company , (w) each of the Material Contract Contracts is a valid valid, binding and binding enforceable obligation of the Company or the applicable Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each the other party theretoor parties thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other laws affecting creditors’ rights generally and general principles of equity), (x) each of the Material Contracts is in full force and effect. There are no disputes pending or, (y) neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge of the Company, threatened with respect any other party to any Company a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract and (z) as of the date hereof, neither the Company nor any of its Subsidiaries has received notice in writing that it has breached, violated or defaulted under any written notice of the intention of Material Contract or that any other party intends to terminate any Company Material Contract prior to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectits scheduled termination date.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (MediaMind Technologies Inc.), Merger Agreement (DG FastChannel, Inc)
Material Contracts. (a) Except as set forth in Section 4.18(a3.14(a) of the Company such Party’s Disclosure Schedule sets forth Memorandum, neither such Party nor any of its Subsidiaries is a true and complete listparty to or bound by, as of the date of this Agreementhereof, any of the following Contracts (each contract, arrangement, commitment or understanding of the type described in this Section 3.14, whether written or oral and whether or not set forth in such Party’s Disclosure Memorandum is referred to as a “Material Contract”):
(i) any material contract or agreement entered into since January 1, 2016 (and any contract or agreement entered into at any time to the extent that material obligations remain as of the date hereof), other than in the ordinary course of business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity;
(ii) any trust indenture, mortgage, promissory note, loan agreement or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, in excess of $100,000 and where such Party or any of its Subsidiaries is a borrower or guarantor, in each case, other than those entered into in the ordinary course of business;
(iii) any contract or agreement limiting in any material respect the freedom of such Party or any of its Subsidiaries to engage in any line of business or to compete with any other Person, or prohibiting in any material respect such Party or any of its Subsidiaries from soliciting customers, clients or employees, in each case whether in any specified geographic region or business or generally;
(iv) any contract or agreement limiting in any material respect the freedom of a current or former employee or service provider of such Party or any of its Subsidiaries to engage in any line of business or to compete with such Party or any of its Subsidiaries, or prohibiting in any material respect such current or former employee or service provider from soliciting customers, clients or employees, in each case whether in any specified geographic region or business or generally;
(v) any material contract or agreement with any Affiliate of such Party or its Subsidiaries, in each case other than (A) contracts solely between or among such Party, any other Party, or any of their respective Subsidiaries or (B) in connection with customer or banking relationships in the ordinary course of business;
(vi) any material agreement of guarantee, support or indemnification by such Party or its Subsidiaries, any material assumption or endorsement by such Party or its Subsidiaries of, or any similar material commitment by such Party or its Subsidiaries with respect to, in each case, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person, in each case other than those entered into in the ordinary course of business;
(vii) any material joint venture, shareholders’, partnership or similar agreement involving a sharing of profits or losses relating to such Party or its Subsidiaries;
(viii) any employment, director, change in control or retention agreement, SERP, or other compensation agreement with any employee, director or officer of such Party or any of its Subsidiaries and any such agreement proposed to be entered into in connection with the Transaction (and no payments will be made to any employee, director or officer of such Party or any of its Subsidiaries in connection with the Transaction except as specified and quantified in Section 3.14(a)(viii) of such Party’s Disclosure Memorandum);
(ix) any broker, distributor, dealer, agency, sales promotion, customer or client referral, underwriter, administrative services, market research, market consulting or advertising agreement providing for annual payments by such Party or its Subsidiaries of more than $100,000;
(x) any material agreement, option or commitment with, or held by, any third party granting such third party the right to acquire, use or have access to any material assets or properties, or any material interest therein, of such Party or its Subsidiaries;
(xi) any material contract or agreement that contains any (w) exclusive dealing obligation, (x) “clawback” or similar undertaking requiring the reimbursement or refund of any fees, (y) “most favored nation” or similar provision or (z) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of such Party or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(xii) any contract under which such Party or any of its Subsidiaries will have an obligation with respect to an “earn-out,” contingent purchase price or similar contingent payment obligation after the date hereof;
(xiii) any lease or other contract (whether real, personal or mixed, tangible or intangible) pursuant to which the Company annualized rent or lease payments for the lease year are in excess of $50,000;
(xiv) any contract or agreement for the use or purchase of materials, supplies, goods, services, equipment or other assets providing for aggregate payments by such Party or any of its Subsidiaries of $100,000; and
(xv) any contract not listed above that is material to the financial condition, results of operations or business of such Party and its Subsidiaries taken as a whole.
(b) Except as set forth in Section 3.14(b) of such Party’s Disclosure Memorandum, such Party and its Subsidiaries have performed in all material respects all of the obligations required to be performed by them as of the date hereof under, and have not received any written notice of a default in respect of, each such Material Contract to which any of such Party or its Subsidiaries is a party or by which the Company or any of such Party or its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse EffectEffect on such Party. Each Company of such Material Contract Contracts is a valid and binding obligation of the Company on such Party, or the applicable 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. There are effect and there exists no disputes pending default or event of default by such Party or any of its Subsidiaries or, to the knowledge Knowledge of such Party, by any other party thereto or any event, occurrence, condition or act, with respect to such Party or its Subsidiaries or, to the CompanyKnowledge of such Party, threatened with respect to any Company other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or condition, would become a default or event of default under any such Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, except in each case except case, as has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Since January 1Effect on such Party. True, 2016 correct and complete copies in all material respects of all such Material Contracts have been furnished or made available to the date hereof, no Top Supplier or Top Customer 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 foregoingother Parties.
Appears in 2 contracts
Sources: Business Combination Agreement, Business Combination Agreement
Material Contracts. (a) Except as specifically set forth in Section 4.18(a4.16(a) of the Company Disclosure Schedule, and except as has not had and would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is (and, to the Company's knowledge, no other party is) in breach of or default under any Contract, (ii) neither the Company nor any of its Subsidiaries has received any written notice or claim of default under any Contract or any written notice of an intention to, and to the knowledge of the Company, no other party to any Contract intends to terminate, not renew or challenge the validity or enforceability of any Contract (including as a result of the execution and performance of this Agreement), (iii) to the Company's knowledge, no event has occurred that, with or without notice or lapse of time or both, would result in a breach or a default under any Contract, (iv) each of the Contracts is in full force and effect, and is the valid, binding and enforceable obligation of the Company and its Subsidiaries, and to the Company's knowledge, of the other parties thereto, and (v) the Company and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the Contracts and are not (with or without the lapse of time or the giving of notice, or both) in material breach thereunder.
(b) Section 4.16(b) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of lists the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is boundor any of their respective properties or assets are bound or affected as of the date hereof, complete and correct copies of which Contracts have previously been made available to Parent, other than such Contracts that the Company has previously filed with the SEC:
(i) any “Contract that purports to limit in any material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K respect the right of the SECCompany or its Subsidiaries (A) to engage or compete in any Contract that is line of the type that would be required business or market, or to be disclosed under Item 404(asell, supply or distribute any service or product or (B) of Regulation S-K promulgated under the Exchange Actto compete with any person or operate in any location;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) contains most favored customer pricing provisions or (B) obligates the Company or its Subsidiaries (or following the Effective Timegrants any exclusive rights, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights of first refusal, rights of first negotiation or similar rightsrights to any person;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition disposition, directly or indirectly (by merger or otherwise), of any assets (other than obligations set forth in the inventory or capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory expenditures in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities capital stock or other obligations equity interests of another person for aggregate consideration in excess of $1,000,000;
(including “earnout” or iv) other contingent payment obligations) outstanding as than Employment Agreements, any Contract with Affiliates of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(viv) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates all agreements under which the Company or any Subsidiary has advanced or loaned any funds in excess of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person$1,000,000 individually;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xivi) any Contract with any Top Supplier the customers or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified suppliers listed in Section 4.18(a)(xi)(A) 4.20 of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Bass Robert M), Merger Agreement (Packaging Dynamics Corp)
Material Contracts. (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under the Exchange Act have been so filed, and, as of the date hereof, no such Contract has been amended or modified (or further amended or modified, as applicable) since the date so filed.
(b) Other than the Contracts described in clause (a) above which were filed in an unredacted form, Section 4.18(a2.10(b) of the Company Disclosure Schedule Letter sets forth a true correct and complete list, as and the Company has made available to Parent correct and complete copies (including all material amendments, modifications, extensions or renewals with respect thereto), of the date of this Agreement, each of the following Contracts to which the Company or any of its the Company Subsidiaries is a party or by which bound as of the date hereof:
(i) each Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that (A) materially restricts the ability of the Company or any of its Affiliates (including Parent and the Parent Subsidiaries is bound:
following the Closing) to (ix) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (area or that following with any Person during any period of time after the Initial Merger Effective Time will restrict the ability or (y) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of Parent their rights with respect to, any of their material assets or its Affiliates to engage in any line of business or compete in any geographic area) properties or (B) obligates could require the disposition of any material assets or line of business of the Company or any of its Affiliates (including Parent and the Parent Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsClosing);
(iiiii) each Contract that creates, evidences, provides commitments in respect of, secures or guarantees (A) Indebtedness for borrowed money in any collective bargaining agreement, labor union contract amount in excess of $2,500,000 or trade union agreement (each, a “Collective Bargaining Agreement”B) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its the Company Subsidiaries having an outstanding principal amount (whether incurred, assumed, guaranteed or secured by any asset) in excess of $10,000,0002,500,000, other than agreements solely between or among the Company and the Company Subsidiaries;
(viii) each Contract for lease of personal property or real property (excluding Oil and Gas Leases) involving annual payments in excess of $2,500,000 or aggregate payments in excess of $5,000,000 that are not terminable without penalty or other liability to the Company or any Contract that provides for of the acquisition or disposition of any assets Company Subsidiaries (other than obligations set forth in any ongoing obligation pursuant to such Contract that is not caused by any such termination) within 60 days, other than Contracts related to drilling rigs;
(iv) each Contract involving the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by mergerpending acquisition, swap, exchange, farmout, sale or other disposition of stock(or option to purchase, sale of swap, exchange, sell or dispose of) any assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement properties that are material to the Company or the Company Subsidiaries or that involves aggregate consideration (including non-cash consideration or the payment of any completion or equipping costs as to any ▇▇▇▇▇ or any other capital expenses) having a fair value that exceeds $2,500,000, other than Contracts involving the acquisition or sale of its Subsidiaries(or option to purchase or sell) Hydrocarbons in the ordinary course of business consistent with past practice;
(v) each Contract for any Derivative Product;
(vi) any each material partnership, stockholder, joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract joint ownership agreement, other than with a third partyrespect to arrangements exclusively among the Company and/or its wholly-owned Subsidiaries and other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any of the Company Subsidiaries;
(vii) any each joint development agreement, exploration agreement, participation, farmout, farm-in, drillco, reversionary or program agreement or similar Contract that obligates (A) requiring the Company or any of its the Company Subsidiaries to make annual expenditures in excess of $2,500,000 or aggregate payments in excess of $5,000,000 during the 12-month period following the date of this Agreement or (B) requiring any loansPerson that is not a Company Subsidiary to pay, advances fund or bear any capital costs or other drilling, completion or equipping costs or expenses with respect to any Oil and Gas Properties held by the Company or any of the Company Subsidiaries requiring annual expenditures in excess of $2,500,000 or aggregate payments in excess of $5,000,000 during the 12-month period following the date of this Agreement, in each case of the immediately foregoing subparts (A) and (B), other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(viii) any Contract that contains (A) a “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor or (B) includes any dedications, commitments, covenants running with the land or other similar obligations that require the Company or any Company Subsidiaries (including, after Closing, Parent or any Parent Subsidiary) to sell, purchase, supply, deliver, gather, transport, process or handle any water (whether freshwater or produced water) Hydrocarbon, minerals, or other substances (1) produced from any Hydrocarbon ▇▇▇▇▇ and all water, carbon dioxide or injection ▇▇▇▇▇ included in the Oil and Gas Properties or (2) used in connection with the drilling or completion of any Hydrocarbon ▇▇▇▇▇, water, carbon dioxide or injection ▇▇▇▇▇, excluding, in each case, any such Contract (x) that would reasonably be expected to result in annual payments or expenditures less than $2,500,000 or aggregate payments or expenditures less than $5,000,000 after the date hereof, (y) where the lands included in the dedication or commitment area thereunder are less than 1280 gross acres or (z) that dedicate, commit or cover volumes less than 7,500 MMcf of gas or 1,500 gross barrels of oil equivalent of liquid Hydrocarbons on a monthly basis (calculated on a yearly average basis);
(ix) each agreement that contains any exclusivity, “most favored nation” or most favored customer provision, call or put option, preferential right or rights of first or last offer, negotiation or refusal, to which the Company or any of the Company Subsidiaries is subject, and, in each case, is material to the business of the Company and the Company Subsidiaries, taken as a whole, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of the Company Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the business or the Oil and Gas Properties of the Company or any of the Company Subsidiaries entered into in the ordinary course of business consistent with past practices;
(x) any acquisition or divestiture Contract that contains “earn out” or other contingent payment obligations or remaining indemnity or similar obligations (other than (A) asset retirement obligations or plugging and abandonment obligations set forth in the Company Gruy Reserve Report or (B) customary indemnity obligations with respect to the post-closing ownership and operation of acquired assets), that would reasonably be expected to result in (1) earn-out payments, contingent payments or other similar obligations to a third-party (but excluding indemnity payments) in any year in excess of $2,500,000 or (2) earn-out payments, contingent payments or other similar obligations to a third-party, including indemnity payments, in excess of $5,000,000 in the aggregate;
(xi) any Contract (other than any Contract otherwise covered by this Section 2.10(b)) that creates future payment obligations (including settlement agreements or Contracts that require any capital contributions to, or investments in, any personPerson) of the Company or any of the Company Subsidiaries, in each case, involving annual payments in excess of $5,000,000 or aggregate payments in excess of $10,000,000 (excluding, for the avoidance of doubt, customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of the Company or any of the Company Subsidiaries), or creates or would create an Encumbrance on any material asset or property of the Company or any of the Company Subsidiaries (other than Permitted Encumbrances);
(viiixii) any Contract that (A) provides for the sale by the Company or any of the Company Subsidiaries of Hydrocarbons (1) in excess of 2,500 gross barrels of oil equivalent of Hydrocarbons per day (calculated on a per day yearly average basis) or (2) for a term greater than 10 years and (B) has a remaining term of greater than 90 days and does not allow the Company or the Company Subsidiaries to terminate it without penalty to the Company or the Company Subsidiaries within 90 days;
(xiii) any Labor Agreement;
(xiv) any Contract (Aother than Oil and Gas Leases and joint operating agreements) granting pursuant to which the Company or one any of its the Company Subsidiaries has paid amounts associated with any Production Burden in excess of $2,500,000 during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it and the Company Subsidiaries will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $2,500,000 annually or $5,000,000 in the aggregate;
(xv) any Contract pursuant to which the Company or any of the Company Subsidiaries (A) acquires, uses or has the right to use any Intellectual Property owned by another Person that is material to its business (except for licenses to generally commercially available software or technology licensed substantially on standard terms and conditions), (B) transfers, grants material licenses or rights to use, or acquires material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used owned by the Company or a Subsidiary any of the Company that Subsidiaries (excluding standard employee invention and confidentiality agreements) or (C) is a sole source materially restricted from using, registering or asserting any Intellectual Property owned by the Company or any of supply of any raw material, component or service the Company Subsidiaries that is material to its business;
(xvi) any Contract which is between the Company or any of the Company Subsidiaries, on the one hand, and any of their respective officers, directors or principals (or any such Person’s Affiliates) or any Person that holds or owns five percent or more of the shares of the Company’s capital stock (or any affiliates of any such Person) on the other hand; or
(xvii) each Contract or Company Entities Organizational Document that would, on or after the Closing Date, prohibit or restrict the ability of Parent or any of its Subsidiaries (including the Company and its Subsidiaries) to declare and pay dividends or distributions with respect to their capital stock, taken as a whole; andpay any Indebtedness for borrowed money, obligations or liabilities from time to time owed to Parent or any of its Subsidiaries (including the Company and its Subsidiaries), make loans or advances or transfer any of its properties or assets.
(xic) any Contract with any Top Supplier or Top Customer, other than, The Contracts described in the case of each Top Supplier foregoing clauses (a) and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule(b), Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales together with all exhibits and schedules to such Top Customer. All contracts of Contracts, as amended through the types referred to date hereof or as hereafter amended in clauses (i) through (xi) aboveaccordance with Section 4.1 hereof, 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
(d) Each Company Material Contract as in effect is valid and binding on the date of this Agreement.
(b) Neither Company or the Company nor any Subsidiary of party thereto, as the Company is in breach of or default under the terms of any Company Material Contract case may be, and, to the knowledge Knowledge of the Company, no each other party to any Company Material Contract thereto, and is in breach of full force and effect in accordance with its terms, except for (i) terminations or default under expirations at the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge end of the Company, through the action stated term or inaction of any third party, that with notice (ii) such failures to be valid and binding or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract, to be in each case except full force and effect as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, in each case subject to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither Enforceability Exceptions.
(e) Neither the Company nor any of its the Company Subsidiaries has received any written notice is in breach of, or default under the terms of, and, to the Knowledge of the intention of any Company, no other party to any Company Material Contract to terminate for defaultis in breach of, convenience or otherwise default under the terms of, any Company Material Contract, nor is any event of default (or similar term) continuing under any Company Material Contract, and, to the knowledge Knowledge of the Company, is there does not exist any event, condition or omission that would constitute such party threatening to do soa default, breach or event of default (or similar term) (whether by lapse of time or notice or both) under any Company Material Contract, in each case except as has not had and where such breach, default or event of default (or similar term) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Crescent Energy Co), Merger Agreement (Silverbow Resources, Inc.)
Material Contracts. (a) Section 4.18(a5.21(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following lists all Material Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(hhereinafter defined) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken except as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified set forth in Section 4.18(a)(xi)(A5.21(a) of the Company Disclosure Schedule, Contracts thateach Material Contract is valid and binding on the Company or such Company Subsidiary and is in full force and effect and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity. Except as set forth in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts Section 5.21(a) of the types referred to in clauses (i) through (xi) aboveCompany 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) Neither Company's knowledge, neither the Company nor any Company Subsidiary of the Company is in breach default or has received notice of any violation or default under the terms of any Company such Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action the Material Contracts, and no such violations or inaction ordefaults will be triggered by the execution, to delivery and performance of this Agreement by the knowledge Company or the consummation of the CompanyTransactions. For purposes of this Agreement, through "Material Contracts" shall mean (i) all contracts, agreements or understandings of a party and the action or inaction Subsidiaries of such party involving 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, payments in each case except as has not had and would not reasonably be expected to havean amount, individually or in the aggregate, in excess of $50,000, (ii) all acquisition, merger, asset purchase or sale agreements entered into by a Company Material Adverse Effect. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of such party, (iii) all non-competition agreements and other agreements or obligations which purport to limit in any respect the Companymanner in which, given notice to or the Company localities in which, all or any material portion of the business of a party or any Subsidiary of the Company such party may be conducted, (iv) all transactions, agreements, arrangements or understandings with any affiliate of any intention to cancel, terminate or substantially curtail its relationship with the Company a party or any Subsidiary of such party that would be required to be disclosed under Item 404 of Regulation S-K of Title 17, Part 229 of the CompanyCode of Federal Regulations ("Regulation S-K"), or(v) all voting or other agreements to which a party is a party governing how any shares of such party's Common Stock shall be voted, (vi) all agreements which provide for, or relate to, the incurrence by a party or any Subsidiary of such party of indebtedness for borrowed money (including any interest rate or foreign currency swap, cap, collar, hedge or insurance agreements, or options or forwards on such agreements, or other similar agreements for the purpose of managing the interest rate or foreign exchange risk associated with its financing), (vii) all contracts or other agreements which would prohibit or materially delay the consummation of the Transactions, (viii) all joint venture agreements to which a party or any Subsidiary of such party is a party, (ix) all agreements or other arrangements related to the knowledge licensing of assets by or to a party or any Subsidiary of such party, (x) all material agreements of indemnification or any guaranty, (xi) any contracts or agreements which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which a party or any Subsidiaries of such party have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by such party or any Subsidiary of such party and which may not be canceled without penalty upon notice of ninety (90) days or less, (xii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any party's product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any party's products, service or technology except agreement with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to the other party; (xiii) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; and (xii) all other agreements within the meaning set forth in Item 601(b)(10) of Regulation S-K. The Company has made available to Parent and MergerCo true and correct copies of the Company, threatened to do any of the foregoingMaterial Contracts.
Appears in 2 contracts
Sources: Merger Agreement (H Power Corp), Merger Agreement (Plug Power Inc)
Material Contracts. (a) Section 4.18(aAs of the date hereof, neither the Company nor any Subsidiary is a party to or bound by (such contracts being the “Material Contracts”):
(i) any partnership, joint venture or other similar agreement or arrangement;
(ii) any agreement entered into on or after January 1, 2007 relating to the acquisition or disposition of any material business (whether by merger, consolidation, acquisition or sale of stock or assets or otherwise);
(iii) any agreement for the purchase or sale of services (including service agreements, statements of work and similar agreements), materials, supplies, goods, equipment or other tangible or intangible assets or group of such agreements with any particular Third Party providing for, or that would reasonably be expected to result in, either (A) annual payments by or to the Company and its Subsidiaries of $100,000 or more or (B) aggregate payments by or to the Company and its Subsidiaries of $500,000 or more;
(iv) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) with an aggregate committed or outstanding principal amount exceeding $100,000;
(v) any agreement containing any provision or covenant limiting the ability of the Company Disclosure Schedule sets forth a true and complete listor any of its Subsidiaries (or, as after the consummation of the date Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell any services or products of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain services or products from any Person or limiting the ability of any Person to provide services or products to the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries);
(vi) any agreement containing any provision or covenant that binds or purports to bind “Affiliates” of the Company or any Subsidiary of the Company or that would otherwise bind or purport to bind Parent or any of its Subsidiaries (other than the Company or any of its Subsidiaries) after the Closing; or
(vii) any agreement providing for annual payments of $100,000 or more or aggregate payments of $500,000 or more containing any provision pursuant to which the execution, delivery and performance of this Agreement, or the consummation of the following Contracts transactions contemplated hereby, would require any consent or other action by any Person thereunder, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, thereunder, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreemententitled thereunder.
(b) Neither the Company nor any Subsidiary of the Company is in breach of Except for breaches, violations or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company , (i) each 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. There are no disputes pending oreffect and (ii) neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge of the Company, threatened with respect any other party to any Company Material Contract, has violated any provision of, or taken any action which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under, or providing for the termination of, any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Diamond Management & Technology Consultants, Inc.), Merger Agreement (PricewaterhouseCoopers LLP)
Material Contracts. (a) Section 4.18(a) 4.15 of the Company Disclosure Schedule Schedules sets forth a true true, correct and complete list, as of the date of this Agreement, of the following Contracts (but not including any Lease Agreements or Company Employee Plans) by which any of the Company or any of the Company Subsidiaries is bound and under which the Company or any of the Company Subsidiaries has ongoing executory obligations or the ability to enforce rights thereunder (collectively, the “Material Contracts”):
(i) each Contract required to be filed by the Company as a “Material Contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which the Company or any of the Company Subsidiaries is a party that restricts the ability of the Company or any of the Company Subsidiaries to compete in any business or with any Person in any geographical area, in each case, in a manner that is material to the Company and the Company Subsidiaries, taken as a whole;
(iii) each credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries, in each case in excess of $250,000 is outstanding or may be incurred, other than any such Contract between or among any of the Company or any of the Company Subsidiaries;
(iv) each Contract to which the Company or any of the Company Subsidiaries is a party with an ISO, sales representative, sales agent, referral partner, sub-agent or any other Person pursuant to which the Company or any of its Subsidiaries generated $250,000 or more in the twelve (12) month period ended December 31, 2017;
(v) each Contract to which the Company or any of the Company Subsidiaries is a party or that is expected to result in aggregate payments in excess of $250,000 by which the Company or any of its Subsidiaries is bound:
in the twelve (i12) any “material contract” month period ending December 31, 2018, except for (as such term is defined 1) Lease Agreements or (2) Contracts relating to the acquisitions and dispositions of properties and assets in Item 601(b)(10) the ordinary course of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actbusiness;
(iivi) any each Contract that entered into within two (A2) imposes any restriction on the right or ability years of the Companydate of this Agreement, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its the Company Subsidiaries having an outstanding principal amount is a party for the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in excess each case, aggregate consideration of more than $10,000,000250,000 except for acquisitions and dispositions of properties and assets in the ordinary course of business;
(vvii) each Contract (1) under which the Company or any of the Company Subsidiaries licenses any Licensed Company IP Rights (other than licenses for commercially-available software) that by its terms calls for fees related to the use of Licensed Company IP Rights by the Company or any of the Company Subsidiaries of more than $250,000 over the remaining term of such Contract (assuming, where applicable, that provides the sales or user levels remain at the same levels as fiscal year 2017), or (2) under which the Company or any of the Company Subsidiaries has licensed any Company Owned IP to Third Parties (i) under an exclusive license or (ii) that by its terms calls for aggregate royalty payments related to the use of Company Owned IP payable to the Company or any of the Company Subsidiaries of more than $250,000 over the remaining term of such Contract (assuming, where applicable, that the sales or user levels remain at the same levels as fiscal year 2017);
(viii) each Contract under which the Company or any Company Subsidiary has granted any Person registration rights (including demand and piggy-back registration rights);
(ix) each Contract relating to the Warrants;
(x) each Contract relating to the acquisition or disposition of any Person, business or operations or assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or constituting a business (whether by merger, sale of stock, sale of assets assets, consolidation or otherwise) and that contains representationsentered into since December 31, covenants2015 (including any such Contract under which contemplated transactions were consummated but under which one or more of the parties thereto has executory indemnification, indemnities earn-out or other obligations liabilities);
(including “earnout” xi) each Contract which provides for a loan or other contingent payment obligations) outstanding as advance of any amount to any employee of the date Company or any temporary agency employee or individual consultant of this Agreement the Company or any Company Subsidiary, other than the advancement of travel and other business expenses in the ordinary course of business;
(xii) each Contract (other than pursuant to Organizational Documents) providing for indemnification by the Company or any Company Subsidiary of any officer, director or employee of the Company;
(xiii) each Contract or arrangement that are material involves any officer or director or, to the Company’s Knowledge, equityholder of the Company, or any Affiliate, spouse or sibling of such Persons;
(xiv) each Contract with any Card Network or with Principal Members of the Card Networks, in each case enabling the Company or a Company Subsidiary to participate in a Card Network; or
(xv) each Contract to which the Company or any of its Subsidiaries;
(vi) any the Company Subsidiaries is a party constituting a joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;agreement (excluding licensing Contracts) relating to the formation, creation, operation, management or control of any partnership or joint venture.
(viib) any The Company has Made Available to Parent true, correct and complete copies of each Material Contract. Each Material Contract that obligates is, as of the date hereof, in full force and effect and a valid and binding agreement enforceable against the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract party thereto and, to the knowledge of the Company’s Knowledge, no each other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contractthereto, in any material respect. No event has occurred or not occurred through the Company’s or any accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles 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 equity and except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation As of the Company or the Subsidiary date of the Company that is party thereto andthis Agreement, to the knowledge none of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its the Company Subsidiaries party to, nor, to the Company’s Knowledge, any other party to, any Material Contract is in breach of or default under, or has provided or received any written notice of the any intention of any other party to any Company Material Contract to terminate for defaultor seek renegotiation of, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to . As of the date hereofof this Agreement, no Top Supplier event or Top Customer circumstance has canceledoccurred that, terminated with or substantially curtailed its relationship with without notice or lapse of time or both, would (i) constitute a material breach of or material event of default by the Company Company, (ii) result in a right of termination for the counterparty or (iii) cause or permit the acceleration of, or other material changes to, any Subsidiary material right of the counterparty or obligation of the Company, given notice to in each case, under any Material Contract, except, in the case of each of clauses (i), (ii) and (iii), as has not had a 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 foregoingMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (JetPay Corp), Agreement and Plan of Merger (NCR Corp)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as of Other than for Contracts entered into after the date of this Agreementhereof and prior to the Closing (which if material will be identified to the Purchaser in writing prior to the Closing), of and contracts listed in other Schedules hereto, except as set forth in Schedule 3.07(a), the following Contracts to which the Company or any of its Subsidiaries Target is not a party or by which the Company or any of its Subsidiaries to, nor is boundit bound by:
(i) Any Contracts with any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) current or former officer, director, employee, consultant or stockholder or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actpartnership, corporation, joint venture or any other entity in which any such Person has an interest;
(ii) Any agreements with any Contract that labor union or association representing any employee;
(Aiii) imposes any restriction on Any Contracts or other agreements for the right provision of products or ability services by the Target involving annual payments to the Target in excess of $100,000;
(iv) Any Contracts or other agreements for the Company, any provision of its Subsidiaries products or any Affiliate services to the Target involving annual payments by the Target in excess of $100,000;
(v) Any Contracts or other agreements for the sale of any of them the Target’s assets or properties having an aggregate value exceeding $100,000 or for the grant to compete with any Person of any preferential rights to purchase any of the Target’s assets or properties;
(vi) Any joint venture agreements relating to the assets, properties or business of the Target;
(vii) Any Contracts or other person in any line agreements containing covenants not to compete, non-solicitation clauses or other restrictive covenants which limit the freedom of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates Target to engage in any line of business or compete to contract with or to solicit or hire any Person in any geographic geographical area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iiiviii) any collective bargaining agreementAny mortgages, labor union contract indentures, guarantees, bonds, loans or trade union agreement (eachcredit agreements, a “Collective Bargaining Agreement”) security agreements or other works council agreement;agreements or instruments relating to the borrowing of money or the extension of credit; or
(ivix) any Any other material Contract or other material agreement relating to Indebtedness of the Company whether or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory not made in the ordinary course of business) or business (whether by mergercollectively, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including the “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Listed 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) Neither the Company nor any Subsidiary Each of the Company Material Contracts listed on Schedule 3.07(a) hereto and each of the material Contracts set forth on the other Schedules hereto (collectively, the “Material Contracts”) is in full force and effect, the Target is not in material breach of or default under any of the terms provisions of any Company Material Contract andsuch contract, nor, to the knowledge of the CompanySeller’s Knowledge, no is any other party to any Company Material Contract is such contract in breach of default thereunder, nor does any event or default under the terms of any Company Material Contract, in any material respect. 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 condition exist which with notice or the lapse passage of time or both would constitute a breach default thereunder. The consummation of the transactions contemplated herein will not cause a breach, termination, modification or default under the terms acceleration of any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1Except as set forth on Schedule 3.07(c), 2016 the Target has no Loss Contracts and has no outstanding bids for potential customer Contracts that could reasonably be expected to the date hereof, no Top Supplier or Top Customer 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 foregoingresult in a Loss Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Metrologic Instruments Inc), Stock Purchase Agreement (Essex Corp)
Material Contracts. (a) Section 4.18(aNeither Parent nor any of its Subsidiaries is a party to any Contract required to be filed by Parent as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Company Disclosure Schedule sets forth a true and complete list, as Securities Act that has not been so filed.
(b) As of the date of this Agreement, neither Parent nor any of its Subsidiaries is a party or bound by the following Contracts (with such Contracts to which the Company Parent or any of its Subsidiaries is a party or by which is otherwise bound being referred to herein as the Company “Parent Material Contracts”):
(i) any Contract that purports to limit, curtail or restrict the right of Parent or any of its Subsidiaries is bound:
in any material respect (iA) to engage or compete in any “material contract” line of business in any geographic area, with any Person or during any period of time or (as such term is defined in Item 601(b)(10B) of Regulation S-K of the SEC) to solicit or hire any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActPerson;
(ii) any Contract that (A) imposes is a master service agreement with any restriction on the right or ability of the Company, any customers listed on Section 5.21 of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsDisclosure Schedule;
(iii) any collective bargaining agreement, labor union contract Contract requiring Parent or trade union agreement (each, a “Collective Bargaining Agreement”) any of its Subsidiaries to provide any notice or other works council agreementinformation to any Person prior to considering or accepting any Acquisition Proposal or similar proposal or prior to entering into any discussions or Contract relating to any Acquisition Proposal or similar transaction;
(iv) any agreement relating Contract (other than a Contract or purchase order with a customer of Parent or its Subsidiaries) that involves total consideration by or to Indebtedness of the Company Parent or any of its Subsidiaries having an outstanding principal amount of more than $5,000,000 in excess of $10,000,000any 12 month period;
(v) any indemnification Contract that provides entered into with an officer or director of Parent providing for the acquisition indemnification by Parent or disposition any of its Subsidiaries (with respect to which Parent or any assets (other than of its Subsidiaries has continuing obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its SubsidiariesAgreement);
(vi) any joint venture, Contract establishing a partnership, limited liability company joint venture or strategic alliance agreement or other similar Contract with a third party;party business enterprise; and
(vii) (A) any Employee Change-of-Control Agreement, (B) any employment Contract that obligates involves base consideration in excess of $200,000 per annum or (C) any consulting Contract that involves base consideration in excess of $200,000 per annum (in each case with respect to which any party thereto has continuing material obligations as of the Company date hereof) with any current or former (1) member of Parent Board or (2) employee.
(c) (i) Each Parent Material Contract is valid and binding on Parent or one of its Subsidiaries and is in full force and effect (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of Parent, is valid and binding on the other parties thereto (in each case subject to the Bankruptcy and Equity Exception); (ii) neither Parent nor any of its Subsidiaries is in material default under any Parent Material Contract and no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of Parent or any of its Subsidiaries to make under any loans, advances or capital contributions to, or investments in, any person;
such Parent Material Contract; and (viiiiii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply Knowledge of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the CompanyParent, no other party to any Company Parent Material Contract is in material breach of or default under the terms of thereunder, nor does any Company Material Contract, in any material respect. 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, condition exist that with notice or the lapse of time or both would constitute a material breach of or default under the terms of by any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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 such other party theretothereunder. Since January 1, and is in full force and effect. There are no disputes pending or2012, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company Parent nor any of its Subsidiaries has received any written notice of the intention termination or cancellation under any Parent Material Contract or received any written notice of material breach or default under any other Parent Material Contract that has not been cured. Neither Parent nor any of its Subsidiaries is party to any Company Material Contract pursuant to terminate for default, convenience which the terms and conditions thereof or otherwise any Company Material Contract, nor information or data contained therein are deemed classified pursuant to the knowledge rules and regulations of any Governmental Authority. Parent has furnished or made available to the Company, is any such party threatening to do so, Company true and correct copies of all Parent Material Contracts in each case except effect as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to of the date hereof, no Top Supplier or Top Customer 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 (TTM Technologies Inc), Merger Agreement (Viasystems Group Inc)
Material Contracts. (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under the Exchange Act have been so filed as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) since the date such Contract or amendment was filed.
(b) Other than the Contracts set forth in Section 4.18(a2.10(a) above which were filed in an unredacted form, Section 2.10(b) of the Company Disclosure Schedule Letter sets forth a true correct and complete list, as and the Company has made available to Parent correct and complete copies (including all material amendments, modifications, extensions or renewals with respect thereto), of the date of this Agreement, each of the following Contracts to which the Company or any of its the Company Subsidiaries is a party or by which bound as of the date hereof:
(i) each Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that materially restricts the ability of the Company or any of its Affiliates (including Parent and the Parent Subsidiaries is bound:
(ifollowing the Closing) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (area or that following with any Person during any period of time after the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company make, sell or its Subsidiaries (distribute any products or following the Effective Timeservices, Parent or its Subsidiaries) to conduct business use, transfer or distribute, or enforce any of their rights with respect to, any third party on a preferential of their material assets or exclusive basis or which contains “most favored nation” rights or similar rightsproperties;
(iiiii) each Contract that creates, evidences, provides commitments in respect of, secures or guarantees (A) Indebtedness for borrowed money in any collective bargaining agreement, labor union contract amount in excess of $10,000,000 or trade union agreement (each, a “Collective Bargaining Agreement”B) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its the Company Subsidiaries having an outstanding principal amount (whether incurred, assumed, guaranteed or secured by any asset) in excess of $10,000,000, other than agreements solely between or among the Company and the wholly owned Company Subsidiaries;
(iii) each Contract for lease of personal property or real property (excluding Oil and Gas Leases entered into in the ordinary course of business consistent with past practice) involving annual payments in excess of $12,500,000 or aggregate payments in excess of $25,000,000 that are not terminable without penalty or other liability to the Company or any of the Company Subsidiaries (other than any ongoing obligation pursuant to such Contract that is not caused by any such termination) within sixty (60) days;
(iv) each Contract involving the pending acquisition, swap, exchange, sale or other disposition of (or option to purchase, acquire, swap, exchange, sell or dispose of) any Oil and Gas Properties of the Company and the Company Subsidiaries for which the aggregate consideration (or the fair market value of such consideration, if non-cash) payable to or from the Company or any Company Subsidiary exceeds $10,000,000, other than Contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business consistent with past practice;
(v) each Contract for any Contract that provides for the acquisition Derivative Product;
(vi) each material partnership, stockholder, joint venture, limited liability company agreement or disposition of any assets (other joint ownership agreement, other than obligations set forth in with respect to arrangements exclusively among the capital expenditure budget set forth on Section 6.1(h) Company and/or its wholly owned Subsidiaries and other than any customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of the Company Disclosure Schedule or any of the Company Subsidiaries;
(vii) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract requiring the Company or any of the Company Subsidiaries to make annual expenditures in excess of $12,500,000 or aggregate payments in excess of $25,000,000 (in each case, net to the interest of the Company and acquisitions or dispositions the Company Subsidiaries) following the date of inventory this Agreement, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases entered into in the ordinary course of businessbusiness consistent with past practice;
(viii) or business (whether by merger, sale of stock, sale of assets or otherwise) and each agreement that contains representationsany exclusivity, covenants“most favored nation” or most favored customer provision, indemnities call or put option, preferential right or rights of first or last offer, negotiation or refusal, to which the Company or any of the Company Subsidiaries or any of their respective Affiliates is subject, and, in each case, is material to the business of the Company and the Company Subsidiaries, taken as a whole, in each case other obligations than those contained in (including A) any agreement in which such provision is solely for the benefit of the Company or any of the Company Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements or unit agreements affecting the business or the Oil and Gas Properties of the Company or any of the Company Subsidiaries entered into in the ordinary course of business consistent with past practice;
(ix) any acquisition or divestiture Contract that contains “earnoutearn out” or other contingent payment obligations, or remaining indemnity or similar obligations (other than (A) outstanding as asset retirement obligations or plugging and abandonment obligations set forth in the Company Reserve Report or (B) customary indemnity obligations with respect to the post-closing ownership and operation of acquired assets), that would reasonably be expected to result in (1) earn out payments, contingent payments or other similar obligations to a third party (but excluding indemnity payments) in any year in excess of $12,500,000 or (2) earn out payments, contingent payments or other similar obligations to a third party, including indemnity payments, in excess of $25,000,000 in the aggregate after the date of this Agreement that are material to the Company or any of its Subsidiarieshereof;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(viix) any Contract that obligates the Company creates future payment obligations (including settlement agreements or Contracts that require any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personPerson) of the Company or any of the Company Subsidiaries, in each case, involving annual payments in excess of $12,500,000 or aggregate payments in excess of $25,000,000 (excluding, for the avoidance of doubt, (A) Oil and Gas Leases and (B) customary joint operating agreements or unit agreements in effect as of the date of this Agreement affecting the Oil and Gas Properties of the Company or any of the Company Subsidiaries, in each case, entered into in the ordinary course of business consistent with past practice and that are not, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole), or creates or would create an Encumbrance on any material asset or property of the Company or any of the Company Subsidiaries (other than Permitted Encumbrances);
(viiixi) any Contract that (A) provides for midstream services to, or the sale by, the Company or any of the Company Subsidiaries of Hydrocarbons (1) in excess of 15,000 gross barrels of oil equivalent of Hydrocarbons per day (calculated on a per day yearly average basis) or (2) for a term greater than or equal to ten (10) years and (B) has a remaining term of greater than ninety (90) days and does not allow the Company or the Company Subsidiaries to terminate it without penalty to the Company or the Company Subsidiaries within ninety (90) days;
(xii) any Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, or similar arrangements that otherwise guarantee or commit volumes of Hydrocarbons from the Company or any Company Subsidiary’s Oil and Gas Properties, which in each case, would reasonably be expected to involve payments (including penalty or deficiency payments) in excess of $10,000,000 during the twelve (12)-month period following the date of this Agreement or aggregate penalty or deficiency payments in excess of $20,000,000 during the two (2)-year period following the date of this Agreement;
(xiii) any Labor Agreement;
(xiv) any Contract (Aother than Oil and Gas Leases entered into in the ordinary course of business consistent with past practice) granting pursuant to which the Company or any of the Company Subsidiaries has paid amounts associated with any Production Burden in excess of $12,500,000 during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it and the Company Subsidiaries will make payments associated with any Production Burden in any of the next three (3) succeeding fiscal years that could, based on current projections, exceed $12,500,000 annually or $25,000,000 in the aggregate;
(xv) any Contract that is between the Company or any of the Company Subsidiaries, on the one hand, and any of their respective officers, directors or principals (or any such Person’s Affiliates) or any Person that holds or owns five percent (5%) or more of the shares of the Company’s capital stock (or any affiliates of any such Person) on the other hand involving aggregate annual payments in excess of $120,000;
(xvi) each Contract or Company Organizational Document that would, on or after the Closing Date, prohibit or restrict the ability of the Surviving Corporation or any of its Subsidiaries to declare and pay dividends or distributions with respect to their capital stock, pay any right Indebtedness for borrowed money, obligations or liabilities from time to use time owed to the Surviving Corporation or any of its Subsidiaries, make loans or advances or transfer any of its properties or assets;
(xvii) each Contract under which the Company or any of the Company Subsidiaries (A) grants any right, license, or covenant not to sue with respect to any material Intellectual Property (other than non-exclusive licenses granted to customers or vendors in respect the ordinary course of commercially available softwarebusiness) or (B) permitting obtains any third person right, license, or covenant not to use, enforce or register be sued with respect to any material Intellectual Property, including Property owned by any material license agreements third party (other than customary licenses for commercial off-the-shelf software which are generally available on non-exclusive licensing provisions included in customer, supplier, and co-packing agreementsdiscriminatory pricing terms), coexistence agreements and covenants not to ▇▇▇;; or
(ixxviii) any each Contract that is the subject of any Legal Proceeding individually that is reasonably expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used payments by the Company or a any Company Subsidiary in excess of the Company that is a sole source of supply of any raw material, component or service that is $2,000,000 and under which there are outstanding material to the Company and its Subsidiaries, taken as a whole; and
obligations (xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(Aincluding settlement agreements) of the Company Disclosure Schedule, or any Company Subsidiary.
(c) The Contracts that, described in the aggregateforegoing Section 2.10(a) and Section 2.10(b), do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales together with all exhibits and schedules to such Top Customer. All contracts of Contracts, as amended through the types referred to date hereof or as hereafter amended in clauses (i) through (xi) aboveaccordance with Section 4.1 hereof, 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
(d) Each Company Material Contract as in effect is valid and binding on the date of this Agreement.
(b) Neither Company or the Company nor any Subsidiary of party thereto, as the Company is in breach of or default under the terms of any Company Material Contract case may be, and, to the knowledge Knowledge of the Company, no each other party to any Company Material Contract thereto, and is in breach of full force and effect in accordance with its terms, except for (i) terminations or default under expirations at the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge end of the Company, through the action stated term or inaction of any third party, that with notice (ii) such failures to be valid and binding or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract, to be in each case except full force and effect as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, in each case subject to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither Enforceability Exceptions.
(e) Neither the Company nor any of its the Company Subsidiaries has received any written notice is in breach of, or default under the terms of, and, to the Knowledge of the intention of any Company, no other party to any Company Material Contract to terminate for defaultis in breach of, convenience or otherwise default under the terms of, any Company Material Contract, nor is any event of default (or similar term) continuing under any Company Material Contract, and, to the knowledge Knowledge of the Company, is there does not exist any event, condition or omission that would constitute such party threatening to do soa default, breach or event of default (or similar term) (whether by lapse of time or notice or both) under any Company Material Contract, in each case except as has not had and where such breach, default or event of default (or similar term) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Callon Petroleum Co), Merger Agreement (APA Corp)
Material Contracts. All contracts, agreements, instruments, plans and leases (other than those disclosed on another schedule to this Agreement or entered into after the date hereof with the written consent of Buyer) to which any of BGH Holdings, BRH Holdings or the Companies are parties, or by which any of BGH Holdings', BRH Holdings' or any of the Companies' properties are subject or bound, meeting any of the descriptions set forth below (together with all contracts, agreements and leases disclosed on another Schedule to this Agreement, the "Material Contracts"), are listed on Schedule 4.20.
(a) Section 4.18(aAny purchase order, agreement or commitment obligating any of BGH Holdings, BRH Holdings or the Companies to purchase or sell any products or services or pay any amount and which either (i) was not entered into in the normal course of business, or (ii) is not terminable without payment or penalty upon sixty (60) days' (or less) notice, or (iii) is in an aggregate amount exceeding $25,000;
(b) Any loan agreement, promissory note, indenture, or letter of credit that will affect any of BGH Holdings, BRH Holdings or the Companies or their assets after Closing, any contract or agreement for the deferred purchase price of property (excluding normal trade payables), or any instrument guaranteeing any indebtedness;
(c) Any contract or agreement by which any of BGH Holdings, BRH Holdings or the Companies is guaranteeing any obligations of any person or entity, or any person or entity is guaranteeing any obligations of any of BGH Holdings or BRH Holdings or the Companies;
(d) Any joint venture, partnership or other arrangement involving a sharing of profits;
(e) Any sales agency, brokerage, distribution or similar contract;
(f) Any agreement which includes provisions regarding minimum volumes or volume discounts;
(g) Any agreement pursuant to which a rebate, discount, bonus, commission or other payment with respect to the sale of any product of the Company Disclosure Schedule sets forth Companies will be payable or required after the Closing;
(h) Any consulting agreement or arrangement;
(i) Any contract or agreement involving the sale by or to the Companies of products on consignment;
(j) Any contract or agreement containing a true and complete list, as power of the date of this Agreement, of the following Contracts to which the Company attorney;
(k) Any contract or agreement restricting any of its Subsidiaries is a party BGH Holdings, BRH Holdings or by which the Company Companies from carrying on business anywhere in the world; and
(l) Any contract or arrangement with any Affiliate of its Subsidiaries is boundHoldings or the Companies; and
(m) Any subordination, non-disturbance, attornment or similar agreement relating to the Leased Real Estate. Except as set forth on Schedule 4.20:
(i) any “material contract” all Material Contracts are in full force and effect and are valid, binding and enforceable against BGH Holdings, BRH Holdings or such Company (as such term is defined and, to the knowledge of Seller, BGH Holdings, BRH Holdings and the Companies, other parties thereto) in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
accordance with their terms; (ii) any Contract that (A) imposes any restriction on none of BGH Holdings, BRH Holdings or the right or ability of the CompanyCompanies is, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Timeand, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or knowledge of Seller, BGH Holdings, BRH Holdings and the Companies, no other party to any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is is, in breach of any provision of, in violation of, or in default under the terms of any Company Material Contract; (iii) no event has occurred which, after the giving of notice or passage of time or both, would constitute a default under or result in the breach of any Material Contract andby any of BGH Holdings, BRH Holdings or the Companies, or to the knowledge of the CompanySeller, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material ContractBGH Holdings, in any material respect. 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 BRH Holdings or the lapse of time or both would constitute a breach of or default under the terms of Companies, by any Company Material Contract, in each case except as has not had other party; and 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 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. There are (iv) no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention consent of any other party to under any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge is required by reason of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 foregoingtransactions contemplated by this Agreement, and none of the material rights of any of the Companies under any of the Material Contracts will be impaired by the consummation of the transactions contemplated by this Agreement and all of such rights will be enforceable by the Companies after the Closing Date without the consent or agreement by any other party. Seller has delivered to Buyer copies of each Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Specialty Foods Corp), Stock Purchase Agreement (Specialty Foods Acquisition Corp)
Material Contracts. Except for this Agreement, the Company Ancillary Agreements and other contracts and agreements (ai) Section 4.18(a) set forth on Schedule 3.20 of the Company Disclosure Schedule sets forth a true and complete listor (ii) filed as exhibits to the Company SEC Documents (collectively, the “Material Contracts”) or (iii) which individually or in the aggregate are not material to Company’s or any of its Subsidiaries’ businesses, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received are a party to or bound by:
(a) any written notice trust indenture, mortgage, promissory note, loan agreement or other contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement (other than any such arrangement entered into for bona fide hedging purposes) or any leasing transaction of the intention type required to be capitalized in accordance with Statement of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge Financial Accounting Standards No. 13 of the Company, is Financing Accounting Standards Board;
(b) any such party threatening to do so, contract for capital expenditures in each case except as has not had and would not reasonably be expected to have, individually or excess of one hundred fifty thousand dollars ($150,000) in the aggregate, a Company Material Adverse Effect.;
(c) Since January any contract limiting the freedom of Company to engage in any line of business, to acquire any material product or asset from any other Person outside the ordinary course of business, to sell any material product or asset outside the ordinary course of business to, or to perform any material service outside the ordinary course of business, or to compete with any other Person (as that term is defined in the Exchange Act);
(d) any contract pursuant to which Company is a lessor of real property or of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal tangible property involving in the case of any such personal property contract more than one hundred thousand dollars ($100,000) over the life of the contract that expires or may be renewed at the option of any Person other than Company so as to expire more than one (1) year after the date of this Agreement;
(e) any material contract with any Person with whom Company does not deal at arm’s length;
(f) any contract which provides for the indemnification of any officer, 2016 director, employee or agent;
(g) any guarantee of indebtedness of any other Person;
(h) any contract with or commitment to any labor union;
(i) any contract or commitment for or relating to the date hereofemployment of any officer, no Top Supplier employee or Top Customer has canceled, terminated or substantially curtailed its relationship with the consultant of Company or any Subsidiary other type of the Companycontract or understanding with any officer, given notice to the Company employee or any Subsidiary consultant of the Company that is not immediately terminable (or terminable within thirty (30) days or less in the case of consultants) by Company without cost or other liability;
(j) any intention joint venture or partnership contract or other agreement which has involved, or is reasonably expected to cancelinvolve, terminate a sharing of profits, expenses or substantially curtail its relationship losses with the any other party; and
(k) any Company IP Rights Agreement other than object code licenses of commercial off-the-shelf computer software under shrink-wrap or any Subsidiary other non-negotiated agreements having a cost of the Company, or, to the knowledge of the Company, threatened to do any of the foregoingless than five hundred dollars ($500) per seat or other generally available commercial licenses providing for license fees in an amount less than ten thousand dollars ($10,000).
Appears in 2 contracts
Sources: Merger Agreement (Authorize.Net Holdings, Inc.), Agreement and Plan of Reorganization (Cybersource Corp)
Material Contracts. (a) Except as set forth in Section 4.18(a3.18(a) of the Sellers and Company Disclosure Schedule sets forth Schedule, the Sellers and/or the Company have made available to the Purchaser a true correct and complete list, copy of each Contract in effect as of the date of this Agreement, Agreement and will make available a correct and complete copy of each Contract in effect as of the following Contracts Closing Date to which the Company or any of its Subsidiaries is a party (or with respect to clauses (v) and (vii) below, by which any of the Company Employees is bound) that (A) is material to the Company and its Subsidiaries, taken as a whole, or (B) is one of the following types of Contracts ((A) and (B) together, the “Company Material Contracts”):
(i) any Contract that is reasonably expected to require the payment by or to the Company or any of its Subsidiaries of (x) more than US$100,000, in the aggregate during any twelve (12)-month period or (y) more than US$100,000, in the aggregate over the term of each such Contract, and, in the cases of both (x) and (y), which does not terminate or is bound:
not terminable without penalty upon notice of sixty (i60) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) days or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actless;
(ii) any joint venture, partnership, limited liability company, strategic alliance and other similar Contract that (A) imposes any restriction on the right or ability involving a sharing of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsprofits and losses;
(iii) any collective bargaining agreementContract entered into within the last three (3) years relating to the acquisition or disposition of any business or operations (whether by merger, labor union contract sale of shares, sale of assets or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementotherwise);
(iv) any agreement Contract that has any material executory indemnification obligations relating to Indebtedness the acquisition, lease or disposition, directly or indirectly, by merger or otherwise, of assets of, or share capital or other equity interest in, another Person, other than such Contracts that are not material to the Company or any of its Subsidiaries;
(v) any Contract that (x) limits the ability of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) or, to the Company’s Knowledge, any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions Employees after the Closing to compete in any line of business or dispositions in any geographic area or (y) contains an exclusivity obligation of, or a grant of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnoutmost favored nation” or other contingent payment obligations) outstanding as of the date of this Agreement that are material similar status to a third party by, the Company or any of its Subsidiaries;
(vi) any joint ventureContract (x) that grants any right of first refusal or first offer or similar right to a third party by the Company or any of its Subsidiaries, partnership, limited liability company (y) that requires the disposition of material assets or strategic alliance agreement line of the business of the Company or any of its Subsidiaries or (z) that limits the payment of dividends or other similar Contract with a third partydistributions by the Company or any of its Subsidiaries;
(vii) any Contract containing any covenant limiting the freedom of the Company or any of its Subsidiaries or, to the Company’s Knowledge, any of the Company Employees, to solicit or hire Persons for employment or consultancy;
(viii) any Contract that obligates limits the freedom of the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting engage in any business or carry on or expand the Company scope or one geographical scope of its Subsidiaries any right to use any material Intellectual Property (other than licenses business anywhere in respect of commercially available software) the world, or (B) permitting manufacture, market, sell, conduct research and development for or provide services for any third person to useproducts, enforce equipment, goods or register services of any material Intellectual Propertybusiness, including or (C) source, purchase or procure from any material license agreements (Person any materials, supplies, merchandise or other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇goods for any business;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016evidencing any material Affiliate Transaction;
(x) any Contract relating to the supply evidencing any Indebtedness of any item used by the Company or a Subsidiary any of its Subsidiaries, or any guarantee thereof, in excess of US$300,000 other than the Indebtedness to direct or indirect wholly owned Subsidiaries of the Company that is a sole source of supply of any raw material, component or service that is material to made in the Company and its Subsidiaries, taken as a whole; andOrdinary Course of Business;
(xi) any settlement agreement entered into since January 1, 2007, other than releases immaterial in nature or amount entered into in the Company Ordinary Course of Business;
(xii) any Contract in respect of the employment of any director, executive officer or other Key Employee;
(xiii) any Contract that is a license or sublicense of any item of Intellectual Property (whether as a licensor or a licensee), other than licenses for “off-the-shelf” commercially available software or that require annual payment of less than US$50,000, including maintenance fees;
(xiv) any Contract that relates to an acquisition, divestiture, merger or business combination or similar transactions;
(xv) any Contract with a Governmental Authority; and
(xvi) any Top Supplier or Top Customer, other than, Contract that was not negotiated and entered into in the case Company Ordinary Course of each Top Supplier Business.
(b) A correct and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 (including all amendments, modifications, extensions, renewals, schedules, exhibits or ancillary agreements with respect thereto) has been made available to the Purchaser. Each Company Material Contract is in full force and effect and is valid, binding and enforceable against the Company or its Subsidiaries party thereto, as the case may be, and, to the Company’s Knowledge, each other party thereto in effect on accordance with its terms, subject to the date of this Agreement.
(b) Bankruptcy and Equity Exceptions. Neither the Company nor any Subsidiary of its Subsidiaries, nor, to the Company Company’s Knowledge, any other party thereto, is in breach of or violation of, or default under the terms of any Company Material Contract andunder, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No 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 or violation of or default under the terms of any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Share Purchase Agreement (Kongzhong Corp), Share Purchase Agreement (Right Advance Management Ltd.)
Material Contracts. (a) Section 4.18(a) 4.19 of the Company Disclosure Schedule sets forth contains a true complete and complete list, as correct list of the date of this Agreement, each of the following contracts:
(i) Contracts required to which be filed by the Company with the SEC pursuant to Item 601 of Regulation S-K under the 1933 Act;
(ii) each Contract between the Company or any of its Subsidiaries is a party and any of the 20 largest customers of the Company and its Subsidiaries by monthly recurring revenue for the quarter ended June 30, 2009;
(iii) except for the Contracts disclosed in clauses (i) and (ii) above and any other customer Contract, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment by which the Company or any of its Subsidiaries, or the payment therefor, by the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that providing for either (A) imposes any restriction on the right annual payments of $1,000,000 or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) more or (B) obligates the Company aggregate payments of $2,000,000 or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementmore;
(iv) any agreement each Company Lease relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000data center;
(v) any partnership, joint venture or other similar agreement or arrangement;
(vi) each Contract that provides for relating to the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party);
(vii) any each Contract that obligates relating to Indebtedness or the deferred purchase price of property of or by the Company or any of its Subsidiaries to make (in either case, whether incurred, assumed, guaranteed or secured by any loans, advances or capital contributions to, or investments in, any personasset) entered into other than in the ordinary course of business consistent with past practice;
(viii) any each Contract (A) granting to which the Company or one any of its Subsidiaries any right to use any material Intellectual Property is a party creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇Permitted Liens;
(ix) each Contract under which the Company or any Contract that is expected to result of its Subsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of credit or loans in the payment or receipt ordinary course of more than $30,000,000 by the Company and its Subsidiaries in 2016business consistent with past practice);
(x) any agency, dealer, sales representative, marketing or other similar agreement involving the payment or receipt of annual payments in excess of $500,000;
(xi) each Contract that contains any exclusivity provisions restricting the Company or any of its Affiliates or that limits the freedom of the Company or any of its Affiliates to compete in any line of business or with any Person or in any area or which would so limit the freedom of the Company or any of its Affiliates after the Closing Date;
(xii) each Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the supply Company, any of its Subsidiaries or any item used predecessor Person other than indemnification obligations of the Company or any of its Subsidiaries pursuant to the provisions of a Contract entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practices and that could not reasonably be expected to have a Subsidiary of Material Adverse Effect on the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a wholeCompany; and
(xixiii) any Contract with any Top Supplier other agreement, commitment, arrangement or Top Customer, other than, plan not made in the case ordinary course of each Top Supplier and each Top Customers identified business involving the payment or receipt of annual payments in Section 4.18(a)(xi)(Aexcess of $1,000,000.
(b) As of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Effect on the Company, each agreement, contract, plan, Company Lease, arrangement or commitment disclosed in the Company Disclosure Schedule or required to be disclosed pursuant to this Section 4.19 (each, a “Material Contract Contract”) is a valid and binding obligation agreement of the Company or a Subsidiary, as the Subsidiary case may be, and is in full force and effect, and none of the Company that is Company, any of its Subsidiaries or, to the knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any such agreement, contract, plan, Company Lease, arrangement or commitment, and, to the knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of each other party theretotime or both, and is in full force and effect. There are no disputes pending or, to would constitute any event of default thereunder.
(c) To the knowledge of the Company, threatened with respect to as of the date of this Agreement no person is renegotiating, or has an express right (absent any Company default or breach of a Material Contract) pursuant to the terms of any Material Contract to renegotiate, and neither any material amount paid or payable to the Company nor under any Material Contract or any other material term or provision of its Subsidiaries any Material Contract. As of the date of this Agreement, the Company has not received any written notice indication of an intention to terminate any of the intention Material Contracts by any of any other party the parties to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectContracts.
(cd) Since January 1, 2016 Complete and correct copies of each Material Contract in existence as of the date of this Agreement have been made available by the Company to Parent prior to the date hereof, no Top Supplier or Top Customer 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 foregoingthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Equinix Inc), Merger Agreement (Switch & Data Facilities Company, Inc.)
Material Contracts. (a) Except as set forth on Section 4.18(a3.14(a) of the Company Disclosure Schedule sets forth Schedules, neither the Company nor any of its Subsidiaries is a true and complete listparty to or bound by, as of the date hereof, any of the following (each Contract of the type described in this Section 3.14(a), whether written or oral and whether or not set forth in the Company Disclosure Schedules, is referred to as a “Material Contract”):
(i) any Contract that constitutes a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) any Contract entered into since January 1, 2016 (and any Contract entered into at any time to the extent that material obligations remain as of the date hereof), other than in the ordinary course of business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity;
(iii) any trust indenture, mortgage, promissory note, loan agreement or other Contract or instrument for the borrowing of money, any currency exchange, commodities or other hedging Contracts or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where the Company or any of its Subsidiaries is a lender, borrower or guarantor, other than Contracts evidencing deposit liabilities, endorsements and guarantees in connection with the presentation of items for collection (e.g., personal or business checks) in the ordinary course of business consistent with past practice, trade payables and Contracts relating to borrowings entered into in the ordinary course of business;
(iv) any Contract limiting (or purporting to limit) the freedom of the Company or any of its Subsidiaries or other Affiliates to engage in any line of business or to compete with any other Person or prohibiting the Company or any of its Subsidiaries or other Affiliates from soliciting customers, clients or employees, in each case, whether in any specified geographic region or business or generally (in each case, other than to a de minimis extent);
(v) any Contract with any Affiliate of the Company or any of its Subsidiaries;
(vi) any agreement of guarantee, support or indemnification by the Company or any of its Subsidiaries, assumption or endorsement by the Company or any of its Subsidiaries of or any similar commitment by the Company or any of its Subsidiaries with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in the ordinary course of business;
(vii) any Contract that would be terminable other than by the Company or any of its Subsidiaries or any Contract under which a material payment obligation would arise or be accelerated, in each case, as a result of the announcement or consummation of this AgreementAgreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events);
(viii) any alliance, cooperation, joint venture, shareholders’ partnership or similar Contract involving a sharing of profits or losses relating to the Company or any of its Subsidiaries;
(ix) any employment Contract with any employee or officer of the Company or any of its Subsidiaries;
(x) any Contract, option or commitment or right with, or held by, any third party to acquire, use or have access to any assets or properties, or any interest therein, of the following Contracts Company or any of its Subsidiaries, other than in connection with the sale of Loans, Loan participations or investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of the Company;
(xi) any Contract that contains any (A) exclusive dealing obligation, (B) “clawback” or similar undertaking requiring the reimbursement or refund of any fees, (C) “most favored nation” or similar provision granted by the Company or any of its Subsidiaries or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(xii) any lease or other Contract (whether real, personal or mixed, tangible or intangible) pursuant to which the annualized rent or lease payments are, or are reasonably expected to be, in excess of $100,000;
(xiii) any Contract for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $100,000 per year; and
(xiv) any Contract not listed above that is material to the financial condition, results of operations or business of the Company or any of its Subsidiaries.
(b) The Company and each of its Subsidiaries have performed in all material respects all of the obligations required to be performed by them and are entitled to all accrued benefits under each, and are not alleged to be and are not, in default in respect of, any Material Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse EffectEffect on the Company and its Subsidiaries. Each Company of the Material Contract Contracts is a valid and binding obligation of on the Company or the its applicable 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. There are , without amendment, and there exists no disputes pending default or event of default or event, occurrence, condition or act, with respect to the Company or any of its Subsidiaries or, to the knowledge Knowledge of the Company, threatened with respect to any Company other contracting party, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default under any Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultexcept, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice be material to the Company and its Subsidiaries. True, correct and complete copies of all Material Contracts have been furnished or any Subsidiary of the Company of any intention made available 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 foregoingParent.
Appears in 2 contracts
Sources: Merger Agreement (S&t Bancorp Inc), Merger Agreement (DNB Financial Corp /Pa/)
Material Contracts. (a) Section 4.18(aSchedule 5.13(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, all of the following Contracts to which the Company or any of its the Subsidiaries is a party or by which it is bound (collectively, the “Material Contracts”):
(i) Contracts with any Stockholders or any current officer or director of the Company or any of its the Subsidiaries is bound:
or any Affiliate (i) any “material contract” (as such term is defined in Item 601(b)(10other than a Subsidiary) of Regulation S-K the Company or any of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActStockholders;
(ii) Contracts with any Contract that (A) imposes labor union or association representing any restriction on the right or ability employee of the Company, Company or any of its Subsidiaries or any Affiliate the Subsidiaries;
(iii) Contracts for the sale of any of them the assets of the Company or any of the Subsidiaries other than in the Ordinary Course of Business;
(iv) Contracts relating to the acquisition by the Company or any of the Subsidiaries of any operating business or the capital stock of any other Person;
(v) Contracts relating to the incurrence of Indebtedness, or the making of any loans;
(vi) Contracts for joint ventures, strategic alliances or partnerships;
(vii) Contracts containing covenants of the Company or any of the Subsidiaries not to compete with any other person in any line of business or geographic region (with any person in any geographical area or that following covenants of any other person not to compete with the Effective Time will restrict Company or any of the ability of Parent or its Affiliates to engage Subsidiaries in any line of business or compete in any geographic geographical area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iiiviii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of Contracts under which the Company or any of its the Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, has made advances or capital contributions to, or investments in, loans to any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇Person;
(ix) any Contract that is expected to result Contracts providing for severance, retention, change in the payment control or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016other similar payments;
(x) any Contract relating to Contracts for the supply employment of any item used by the Company individual on a full-time, part-time or a Subsidiary of the Company that is a sole source of supply of any raw material, component consulting or service that is material to the Company and its Subsidiaries, taken as a wholeother basis; and
(xi) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the Company or any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 AgreementSubsidiaries.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms has received any written notice of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of default or default under the terms of any Company Material Contract, in any material respect. 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 time, or both both, would constitute a breach of or default by the Company and the Subsidiaries under the terms of any Company Material Contract, in each case except as has not had and for such defaults that are no longer continuing or would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Stock Purchase Agreement (Sixx Holdings Inc), Stock Purchase Agreement (Bailey Lee Ann)
Material Contracts. (a) As of the date hereof and other than as set forth on Section 4.18(a) 4.8 of the Company Disclosure Schedule sets forth a true and complete listSchedule, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is not a party to or bound by which the Company or any of its Subsidiaries is boundContract:
(i) any “that would be required to be filed by the Company as a material contract” (as such term is defined in contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on would, after giving effect to the right Merger, limit or ability of restrict the Company, any of its Subsidiaries Surviving Corporation or any Affiliate of any of them to compete with any other person successor thereto from engaging in any line of business (including the sale of any product) or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) area or (B) obligates that contains an express non-competition covenant on the Company or its Subsidiaries (or following part of the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsCompany;
(iii) that creates a partnership or joint venture or similar arrangement with respect to any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementmaterial business of the Company;
(iv) would or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement;
(v) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for indebtedness in excess of $100,000;
(vi) that is a written contract (other than this Agreement) for the sale of any of its assets after the date hereof in excess of $100,000 (other than in the ordinary course of business);
(vii) that is a collective bargaining agreement relating to Indebtedness of or any other agreement with a union;
(viii) that is an employment, consulting, severance, termination or indemnification contract obligating the Company or any of its Subsidiaries having after the Closing to pay to any current or former employee, officer or director of the Company;
(ix) that is with an outstanding principal officer or director of the Company under which the Company or any of its Subsidiaries would have obligations after the Closing;
(x) that creates an obligation on the part of the Company or a Subsidiary to pay another Person an amount in excess of $10,000,000100,000 in any 12 month period beginning on or after January 1, 2007;
(vxi) that creates an obligation on the part of another Person to pay the Company or a Subsidiary an amount in excess of $100,000 in any Contract that provides for the acquisition 12 month period beginning on or disposition of any assets after January 1, 2007 (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory pursuant to customer Contracts in the ordinary course of business, unless such obligation is in an amount in excess of $500,000 during such 12 month period);
(xii) that relates to the lease or sublease of real property; or
(xiii) is entered into outside the ordinary course of business (whether by merger, sale and creates a material obligation of stock, sale of assets payment to or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to from the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from . Each such Top Supplier or sales to such Top Customer. All contracts of the types referred to contract described in clauses (ii)-(xii) through (xi) above, are is referred to herein as a “Company Material ContractsContract.” 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of enforceable against the Company that is party thereto in accordance with its terms and, to the knowledge of the Company’s knowledge, of each other party thereto, and is in full force and effect. There are no disputes pending or, and the Company has performed in all material respects all obligations required to be performed by it to the date hereof under each Material Contract and, to the knowledge of the Company’s knowledge, threatened with respect each other party to any Company each Material Contract has performed in all material respects all obligations required to be performed by it under such Material Contract. The Company has not received notice, and neither nor does it have knowledge, of any material violation of or default of any material obligation under (or any condition which with the Company nor passage of time or the giving of notice would cause such a violation of or default under) any Material Contract to which it is a party or by which it or any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience properties or otherwise any Company Material Contract, nor to the knowledge of the Company, assets is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectbound.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
Material Contracts. (a) Section 4.18(a) Schedule 4.17 of the Company Disclosure Schedule sets forth contains a true and complete list, as list of the date of this Agreement, of the following all Contracts (other than purchase orders and invoices) to which the Company or any of its Subsidiaries is a party (a) which is a joint venture, partnership or by other similar agreement involving co-investment with a third party; (b) under which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) has created, incurred, assumed or guaranteed indebtedness for borrowed money, or any Contract capitalized lease obligation, or any agreement under which it has granted a Lien on any of its assets, tangible or intangible (but with a value in excess of $100,000), or any currency or interest rate swap, collar or hedge agreement; (c) whereby the Company or any of its Subsidiaries has an obligation to make an investment in or loan to any Person in excess of $100,000; (d) that is contains a minimum purchase requirement for the Company and its Subsidiaries to purchase during the 12-month period immediately following, or pursuant to which the Company and its Subsidiaries have purchased during the 12-month period immediately preceding, the Balance Sheet Date, in the aggregate, a minimum of $100,000 of goods and/or services on an annual basis; (e) that contains a minimum supply commitment for the type Company and its Subsidiaries to sell during the 12-month period immediately following, or pursuant to which the Company and its Subsidiaries have sold during the 12-month period immediately preceding, the Balance Sheet Date, in the aggregate, a minimum of $100,000 of goods and/or services on an annual basis; (f) that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under contains covenants restricting or limiting the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of their Affiliates (including, without limitation, Parent or any of them its Affiliates from and after the consummation of the Offer or the Closing) to compete in any business or with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area; (g) or (Bthat contemplates any extraordinary transaction(s) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of by the Company or any of its Subsidiaries having an outstanding principal amount and/or shares of the Company held by its Affiliates, including letters of intent, confidentiality, non-solicitation and other similar agreements or arrangements; (h) that contains any indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, where the contingent rights or obligations reasonably would be expected to exceed $100,000; (i) to which any agency or department of the United States federal government is a counterparty; (j) for the lease of personal property to or from any Person providing for lease payments in excess of $10,000,000;
100,000 per annum; (vk) any Contract that provides for involve the acquisition or disposition use of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries and which require annual license or royalty payments in 2016;
excess of $100,000; or (xl) any Contract relating to the supply of any item used by with customers, manufacturers, distributors, dealers, manufacturer’s representatives or sales agents with whom the Company deals which involve (or a Subsidiary of could reasonably be expected to involve) the Company that is a sole source of supply of any raw materialreceipt or payment, component whether contingent or service that is material otherwise, by or to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, of more than $100,000 in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customerfiscal year 2007. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement hereof a complete true and correct copy of each Company Material such Contract. Each Contract as in effect required to be so listed is valid and binding on the date Company or its Subsidiary, as the case may be, and, to the Knowledge of this Agreement.
(b) Neither the Company, on each counterparty and is in full force and effect, and neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract andits Subsidiaries, nor, to the knowledge Knowledge of the Company, no any other party to any Company Material Contract thereto, is in breach of of, or default under the terms of under, any Company Material such Contract, in any material respect. No 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 such a breach of or default under thereunder by the terms Company or any of its Subsidiaries, or, to the Knowledge of the Company, any Company Material Contractother party thereto, except for such failures to be valid, binding or in each case except as has full force and effect and such breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Watsco Inc), Merger Agreement (Acr Group Inc)
Material Contracts. (a) Section 4.18(a4.20(a) of the Company Disclosure Schedule sets forth a true and complete listlists, as of the date of this Agreement, of the following Contracts each contract or agreement described below in this Section 4.20(a) to which the Company or any of its Subsidiaries is a party to or bound by (collectively, the “Material Contracts”):
(i) any Company Scheduled Contract;
(ii) any note, debenture, guarantee, loan, credit or financing agreement or instrument, other contract relating to indebtedness for borrowed money or other contract relating to indebtedness in excess of $75,000;
(iii) any Real Property Lease, lease, sublease, rental or occupancy agreement, installment or conditional sale agreement, or other contract where the Company or one of its Subsidiaries is a sublessor, tenant or subtenant;
(iv) any joint venture, partnership or other contract involving a share of profits, losses, costs or liabilities;
(v) any contract between the Company or any of its Subsidiaries, on the one hand, and any director, officer or affiliate of the Company or any of its Subsidiaries, on the other hand (other than employment or indemnification arrangements entered into in the ordinary course of business);
(vi) any employment contracts or arrangements (including without limitation any collective bargaining contract or union agreement) in which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third a party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness the employees of the Company or any of its Subsidiaries having an outstanding principal amount in excess of whose annual base salary exceeds $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement 150,000 that are material to the Company currently in effect and which may not be terminated at will, or by giving notice of 30 days or less, without cost or penalty (or any augmentation or acceleration of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third partybenefits);
(vii) any Contract that obligates agreement, contract or commitment requiring the Company or any of its Subsidiaries to make any loans, advances indemnify or capital contributions to, or investments in, hold harmless any person, other than those entered into in the ordinary course of business;
(viii) any Contract (A) granting agreement or other contract containing exclusivity covenants or covenants limiting, in any material respect, the ability of the Company or one any of its Subsidiaries to compete with any right to use person or engage in any material Intellectual Property (other than licenses line of business or in respect of commercially available software) any area or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇territory;
(ix) any Contract that is expected contract relating to result in the payment acquisition, lease, license or receipt of more than $30,000,000 disposition by the Company and or any of its Subsidiaries of assets and properties (other than in 2016the ordinary course of business), where the fair market value of the assets and properties exceeds $50,000;
(x) any Contract relating to the supply contract with a Governmental Authority;
(xi) any contract under which (1) any person has directly or indirectly guaranteed any liabilities or obligations of any item used by the Company or any of its Subsidiaries or (2) the Company or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other person (in each case other than endorsements for the purpose of collection in the ordinary course of business or indemnification obligations entered in the ordinary course of business);
(xii) any contract granting any person a Subsidiary material Lien on all or any part of the assets of the Company or any of its Subsidiaries, other than Permitted Liens or Liens that will be released at or prior to the Closing;
(xiii) any contract involving aggregate annual payments or accruals in excess of $100,000 in any twelve (12) month period, to be made by or to the Company or any of its Subsidiaries after the date hereof;
(xiv) any contract or agreement with physicians, physician groups or any other healthcare entity or provider where the annual payments are in excess of $100,000;
(xv) any performance bond, payment bond or similar arrangement;
(xvi) any agreement with any affiliates of the Company or any of its Subsidiaries; and
(xvii) any earn-out or similar deferred payment obligations to which the Company or any of its Subsidiaries is a sole source liable, contingently or otherwise, as obligor or otherwise.
(b) Except as set forth in Section 4.20(b) of supply of any raw materialthe Company Disclosure Schedule and except for breaches, component violations or service that is defaults which would not reasonably be expected to be, individually or in the aggregate, material to the business of the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) aboveeach of the Material Contracts is valid, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior binding, enforceable and in full force and effect, except to the date extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of this Agreement a complete good faith and correct copy fair dealing (regardless of each Company Material Contract as whether enforcement is sought in effect on the date of this Agreement.
equity or at law) and (bii) Neither neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract andits Subsidiaries, nor to the knowledge of the Company, no any other party to a Material Contract, has violated in any Company Material Contract is in breach material respect any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the terms provisions of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company such Material Contract, and (iii) neither the Company nor any of its Subsidiaries has received any written notice of the intention of that it has in any other party to material respect breached, violated or defaulted under any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Conmed Healthcare Management, Inc.), Merger Agreement (Conmed Healthcare Management, Inc.)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete listExcept for this Agreement, as of the date hereof, neither the Company nor any of this Agreement, its Subsidiaries is a party to or bound by (any contract of the following Contracts type described in this Section 4.21(a) being referred to herein as a “Company Material Contract”):
(i) any outbound lease, license, sale or other similar agreement providing for the sale, lease or license by the Company or any of its Subsidiaries of goods, services, Intellectual Property or other assets that is expected to result in either (A) annual payments to the Company or any of its Subsidiaries of $350,000 or more, or (B) aggregate payments to the Company or any of its Subsidiaries of $1,000,000 or more over the next five (5) years, except for any such contract between the Company and/or any of its Subsidiaries;
(ii) any inbound lease, license, purchase or other similar agreement for the purchase, lease or license by the Company or any of its Subsidiaries of goods, services, Intellectual Property or other assets that is expected to result in either (A) annual payments by the Company or any of its Subsidiaries of $350,000 or more, or (B) aggregate payments by the Company or any of its Subsidiaries of $1,000,000 or more over the next five (5) years, except for any such contract between the Company and/or any of its Subsidiaries;
(iii) any contract or agreement evidencing (A) outstanding indebtedness for borrowed money, or (B) an obligation of the Company or any of its Subsidiaries to guarantee, or otherwise indemnify or hold harmless any Person, in respect of indebtedness for borrowed money, in the case of each of clauses (A) and (B), in or for an amount of $350,000 or more, except for any such contract or agreement between the Company and/or any of its Subsidiaries;
(iv) any joint venture, partnership, strategic alliance, or similar agreement;
(v) any contract or agreement relating to the acquisition or disposition of any material business or any interest therein under which the Company or any of its Subsidiaries is a party has any material outstanding rights or by which obligations;
(vi) any contract or agreement that limits, or purports to limit, in any material respect, the ability of the Company or any of its Subsidiaries is bound:to compete in a line of business or with any Person or in any geographic area or during any period of time;
(ivii) any contract or agreement that, upon the consummation of the transactions contemplated by this Agreement, will result in any of Parent or any of its Subsidiaries or any of the Company or any of its Subsidiaries, granting any rights or licenses to any material Intellectual Property of any of Parent or any of its Subsidiaries or any of the Company or any of its Subsidiaries, to any Third Party; and
(viii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC, other than Item 601(b)(10)(iii)).
(i) or any Each Company Material Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
in full force and effect, (ii) any Contract that (A) imposes any restriction on no written or, to the right or ability Knowledge of the Company, any other claim of its Subsidiaries default under or any Affiliate cancellation of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Material Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether has been received by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ixiii) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received is, in any written notice of the intention of any other party to any Company Material Contract to terminate for defaultmaterial respect, convenience in breach or otherwise violation of, or default under, any Company Material Contract, nor and, to the knowledge Knowledge of the Company, is any such no other party threatening to do sois, in each case except as has not had and would not reasonably be expected to haveany material respect, individually in breach or in the aggregateviolation of, a or default under, any Company Material Adverse Effect.
(c) Since January 1, 2016 to Contract. As of the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company has heretofore delivered or any Subsidiary made available to Parent true and complete copies of the Company, given notice to the all 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 foregoingMaterial Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Powerdsine LTD), Merger Agreement (Microsemi Corp)
Material Contracts. (a) Section 4.18(aSchedule 4.4(a) of the Company Disclosure Schedule sets forth a true and complete listlists, as of the date of this AgreementEffective Date, each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound in connection with the Company or any of its Subsidiaries is bound:Business (together with all Real Property Leases listed in Schedule 4.17(a) and all Intellectual Property licenses listed in Schedule 4.3(a), collectively, the "Material Contracts"):
(i) any “material contract” Contract (as or group of related Contracts) for the furnishing or receipt of products or services, in each case, the performance of which will extend over a period of more than one year or which provides for payments to or by the Company in excess of $10,000 in the aggregate during the year ended December 31, 2020 (or are expected to involve payments in excess of such term is defined amount during fiscal year 2021), other than individual purchase orders made in Item 601(b)(10) the ordinary course of Regulation S-K of the SEC) or business pursuant to any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actsuch Contract;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) capital lease or (B) obligates any other lease or other Contract relating to equipment and machinery providing for rental payments in excess of $10,000 in the Company or its Subsidiaries aggregate during the year ended December 31, 2020 (or following the Effective Time, Parent or its Subsidiaries) are expected to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsinvolve payments in excess of such amount during fiscal year 2021);
(iii) any collective bargaining agreementContract relating to the Intellectual Property owned by the Company or used in the Business, labor union contract or trade union agreement (eachincluding, a “Collective Bargaining Agreement”) or other works council agreementwithout limitation, Contracts relating to the development of such Intellectual Property;
(iv) any agreement Contract relating to Indebtedness the acquisition or disposition of any business of the Company (whether by merger, consolidation, or other business combination, sale of securities, sale of assets or otherwise) or any material assets or real property, in each case, other than acquisitions or dispositions of its Subsidiaries having an equipment, materials, supplies, inventory or products in the ordinary course of business consistent with past practice and other than any Contract pursuant to which no party thereto has any outstanding principal amount in excess of $10,000,000obligation (including indemnification obligations or purchase price adjustments), contingent or otherwise;
(v) any Contract that provides for under which the Company has continuing indemnification obligations, or is, or may become, obligated to pay any amount in respect of purchase price adjustment or otherwise in connection with any (A) acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business securities, (whether by B) merger, sale consolidation or other business combination, or (C) series or group of stock, sale related transactions or events of assets or otherwisethe type specified in clauses (A) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligationsB) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiariesabove;
(vi) all employment, severance, consulting, bonus, profit sharing, percentage compensation, deferred compensation, pension, welfare, retirement, equity purchase or equity option plans and agreements and commitments with or relating to the personnel (current or former) or Affiliates of the Company;
(vii) any Contract with the SBA, the PPP Lender, or any other Person relating to the PPP Loan;
(viii) any Contract under which any Person has guaranteed any Indebtedness by or for the Company;
(ix) any Contract relating to any joint venture, partnership, limited liability company or company, strategic alliance agreement or other similar Contract sharing of profits or losses with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016Person;
(x) any Contract relating containing covenants purporting to limit, in any material respect, the supply freedom of any item used by the Company or a Subsidiary any of the Company that is a sole source of supply of its Personnel (current or former) to compete in any raw material, component business or service that is material to the Company and its Subsidiaries, taken as a whole; andin any geographic area;
(xi) any Contract with relating to confidentiality or non-disclosure (whether the Company is subject to or the beneficiary of such obligations);
(xii) any Top Supplier agency, dealer, distributor, sales representative, service provider, consignment, marketing, or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(Asimilar Contract;
(xiii) any Contract requiring payments or distributions to any Stockholder or Personnel of the Company Disclosure Schedule(current or former), Contracts thator any relative or Affiliate of any such Person;
(xiv) any Contract not made in the ordinary course of business that is otherwise material to the operations, business prospects, or financial condition of the Company;
(xv) any Contract providing for termination, retention, change in control or similar payments to any Person;
(xvi) any Contract that provides any customer with pricing, discounts or benefits that change based on the pricing, rebates, discounts, or benefits offered to other customers of the Company, including any Contract which contains a "most favored nation" provision; and
(xvii) any other Contract (or group of related Contracts) under which the Company (A) is obligated to make payment or incur costs or (B) generates revenue, in the aggregate, do each case in excess of $25,000 and which is not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to otherwise described in clauses (i) through - (xixvi) above, 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) The Company has provided Parent with true and complete copies of all written Material Contracts and each amendment, supplement, waiver, or modification thereto, and has provided to Parent a written summary setting forth the terms and conditions of each oral Material Contract. All of the Material Contracts identified on, or required to be identified on Schedule 4.4(a) are legal, valid, binding and enforceable in accordance with their respective terms with respect to the Company, and to Company's Knowledge, with respect to each other party to such Material Contracts, and are in full force and effect and, except to the extent that any Consents set forth on Schedule 4.12(a) have not been obtained or such Material Contract has expired in accordance with its terms, shall continue to be in full force and effect on identical terms following the consummation of the transactions contemplated hereby. Neither the Company nor any Subsidiary of the Company other party thereto, has breached any material provision of, or is in breach of or default under the terms of of, nor does any Company Material Contract andcondition exist which, to the knowledge of the Company, no other party to any Company Material Contract is in breach of with or default under the terms of any Company Material Contract, in any material respect. 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 without notice or the lapse of time time, or both both, would constitute a breach of or default under the terms of any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of cause 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, be in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 default under any of the foregoingMaterial Contracts or would constitute a material breach or default or permit termination, modification or acceleration under any such Material Contract. The Company has not (i) received any notice of cancellation or termination or change in material terms (including, pricing, term and volume) of any such Material Contract or (ii) during the two (2) years prior to the Closing Date, obtained or granted any material waiver of or under any provision of any such Material Contract except for routine waivers granted or sought in the ordinary course of business or as otherwise identified on Schedule 4.4(a). Except for the Consents set forth on Schedule 4.12(a), the consummation of the transactions contemplated by this Agreement shall not afford any other party the right to terminate, modify or renegotiate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Bendele Phillip), Merger Agreement (Inotiv, Inc.)
Material Contracts. (a) Section 4.18(a3.13(a) of the Company Disclosure Schedule sets forth a true and complete listlists, as of the date of this Agreementhereof, each of the following Contracts written contracts and agreements of the Company and each Subsidiary (such contracts and agreements, together with all Company IP Agreements listed or otherwise set forth in Section 3.14(b) of the Disclosure Schedule, being “Material Contracts”):
(i) each contract, agreement, invoice, purchase order and other arrangement related to their Business under the terms of which the Company or any Subsidiary: (x) is reasonably expected to pay or otherwise give consideration of more than $250,000 in the aggregate during the calendar year ending December 31, 2015 or (y) is reasonably expected to pay or otherwise give consideration of more than $1,000,000 in the aggregate over the remaining term of such contract;
(ii) each Significant Customer Fiber Contract and Significant Customer Fiber Contract MSA;
(iii) all material broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party party;
(iv) all material management contracts and contracts with independent contractors or by consultants (or similar arrangements) to which the Company or any of its Subsidiaries Subsidiary is bound:
(i) any “material contract” (as a party and that cannot be cancelled by the Company or such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) Subsidiary without penalty or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actfurther payment and without more than 30 days’ notice;
(iiv) any Contract that all contracts and agreements relating to the incurrence of (A) imposes Indebtedness of the Company or any restriction on Subsidiary for borrowed money and (B) any other Indebtedness of the right Company or any Subsidiary in excess of $50,000;
(vi) all contracts and agreements (other than confidentiality agreements entered into in the ordinary course of business and consistent with past practice) that limit or purport to limit the ability of the Company, any of its Subsidiaries Company or any Affiliate of any of them Subsidiary to compete with any other person in any line of business or geographic region (with any Person or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic areaarea or during any period of time;
(vii) all contracts and agreements between or among the Company or any Subsidiary, on the one hand, and the Seller or any officer, director, or Affiliate (other than the Company and Subsidiaries) of the Seller, or any officer or director of the Company or any Subsidiary, or any immediate family member of any of the foregoing, on the other hand;
(viii) all contracts and agreements providing for benefits under any Plan;
(ix) all leases or subleases for the Leased Real Property set forth in Section 3.15(b) of the Disclosure Schedule;
(x) all leases for each item of machinery, equipment, tools, supplies, furniture, fixtures, personalty, vehicles, and other tangible personal property used in the Business of, or leased by, the Company or any Subsidiary that (A) is reasonably expected to involve consideration of more than $250,000 in the aggregate during the calendar year ending December 31, 2015, or (B) obligates is reasonably expected to involve consideration of more than $1,000,000 to a particular third party (including the Seller or any of its Affiliates (other than the Company and the Subsidiaries)) in the aggregate over the remaining term of the contract;
(xi) all material (A) right-of-way use contracts and (B) access or its Subsidiaries attachment contracts, including agreements relating to (1) access or following attachment to utility poles or to placing fiber within underground conduits or across easements and (2) regeneration site rights, in each case, for the Effective Time, Parent private fiber optic networks or its other Fiber of the Company and the Subsidiaries;
(xii) all contracts granting the other party to conduct business with any such contract or a third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating status that applies to Indebtedness the price of services provided by the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000Subsidiary;
(vxiii) all contracts that provide for “exclusivity” or any Contract that provides for the acquisition or disposition similar requirement in favor of any assets (Person other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its SubsidiariesSubsidiary;
(vixiv) all contracts containing any joint venture“non-solicitation”, partnership, limited liability company “no-hire” or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract provisions that obligates restrict the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personSubsidiary;
(viiixv) all collective bargaining agreements or other agreements or arrangements with any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a wholelabor union; and
(xixvi) any Contract with any Top Supplier all joint venture, partnership and material development contracts. Notwithstanding the foregoing or Top Customeranything herein to the contrary, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Excluded Contracts that, in the aggregate, do shall not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company constitute 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) Neither the Company nor any Subsidiary of the Company Except as is in breach of or default under the terms of any Company Material Contract andnot, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and the Subsidiaries, taken as a Company Material Adverse Effect. Each Company whole, (i) each Material Contract is a valid and binding obligation of on the Company or the Subsidiary of the Company that is a party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge (ii) upon consummation of the Companytransactions contemplated by this Agreement and the Ancillary Agreement, threatened except with respect to consents set forth in Section 3.05 of the Disclosure Schedule that are not obtained, each Material Contract shall continue in full force and effect without any penalty or other adverse consequence, (iii) none of the Company and the Subsidiaries is in breach of, or default under, any Material Contract, and neither no event has occurred and no condition exists that would, with or without notice, the lapse of time, or both, constitute a breach of or a default by the Company nor or any of its Subsidiaries has received Subsidiary under any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor and (iv) to the knowledge Seller’s Knowledge, no other party (other than the Company or any Subsidiary) to any Material Contract (A) is in breach of, or default under, such Material Contract, or (B) has given written or oral notice that it will terminate (whether or not subject to any contingency) such Material Contract or not renew such Material Contract beyond the expiration of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectits then-current term.
(c) Since January 1, 2016 The Seller has made available to the date hereofPurchaser true and complete copies of all Material Contracts.
(d) There is no contract, no Top Supplier agreement or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or other arrangement granting any Subsidiary of the Company, given notice Person any preferential right 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 purchase any of the foregoingAssets or any of the Shares.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Crown Castle International Corp), Stock Purchase Agreement (Quanta Services Inc)
Material Contracts. (a) Section 4.18(aSection 4.19(a) of the Company Disclosure Schedule sets forth a true and complete list, list as of the date of this Agreement, Agreement of each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound (each such Contract listed or required to be so listed, and each of the following Contracts to which the Company or any of its Subsidiaries is bound:becomes a party or by which it becomes bound after the date of this Agreement, a “Company Material Contract”):
(i) any “material contract” Contract pursuant to which the Company or any of its Subsidiaries incurred payment obligations or received payments in excess of $10,000,000 during the twelve (as such 12) month period ended September 30, 2019, or is expected to incur payment obligations or receive payments in excess of (A) $10,000,000 during any twelve (12) month period ending after September 30, 2019 or (B) $10,000,000 over the remaining term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActContract;
(ii) any Contract that (A) imposes any restriction on the right limits or ability of the Companypurports to limit, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following material respect, the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness freedom of the Company or any of its Subsidiaries having to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time, (B) contains any material exclusivity or “most favored nation” obligations or restrictions or similar provisions that are binding on the Company or any of its Subsidiaries (or, after the Effective Time, that would be binding on Parent or any of its Affiliates) or (C) otherwise limits or restricts, in any material respect, the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Affiliates) from hiring or soliciting any Person for employment;
(iii) any deposit sweep agreement or similar agreement;
(iv) (A) any standard form Contract pursuant to which the Company or any of its Subsidiaries provides Brokerage Services or Investment Advisory Services to any Client and (B) any material Contract (or group of Contracts that, in the aggregate, are material) pursuant to which the Company or any of its Subsidiaries provides Brokerage Services or Investment Advisory Services to any Client that is not on any such standard form and includes material deviations from any such standard form;
(v) any material subadvisory agreement;
(vi) any material custody or sub-custody agreement, transfer agent agreement, administrative and accounting agreement, shareholders services agreements, distribution agreement, prime brokerage or other brokerage related agreement, or similar agreement;
(vii) any material Contract that provides for any referral arrangement, commission-sharing arrangement or co-marketing arrangement, including, any finder’s agreement for soliciting, distributing or promoting Investment Advisory Services or Brokerage Services by or to the Company or any of its Subsidiaries;
(viii) any Contract reasonably expected to result in payments made or received by the Company and its Subsidiaries in excess of $10,000,000 in any year and for which the execution, delivery and performance by the Company of this Agreement or the consummation of any of the Transactions would require any consent or other action by any Person (including notice by the Company) thereunder, constitute a default, or an outstanding event that, with or without notice or lapse of time or both, would constitute a default, thereunder, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation (including triggering of a price adjustment, right of renegotiation or other remedy) or the loss of any benefit to which the Company or any of its Subsidiaries is entitled thereunder;
(ix) promissory notes, loan agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, (A) if as borrower or guarantor, in aggregate principal amount in excess of $10,000,00015,000,000, and (B) if as lender, in aggregate principal amount in excess of $5,000,000;
(vx) any Contract that provides for restricting the payment of dividends or the making of distributions to stockholders of the Company or the repurchase of stock or other equity of the Company;
(xi) any Collective Bargaining Agreements;
(xii) any material joint venture, profit-sharing, partnership or other similar agreements;
(xiii) any Contracts or series of related Contracts entered into within the last three (3) years or containing any material surviving obligations relating to the acquisition or disposition of the assets or securities of any assets Person or any business for a price in excess of $10,000,000 (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (each case, whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries);
(vixiv) any joint venturelease or sublease for real or personal property for which annual rental payments made by the Company and its Subsidiaries during the twelve (12) month period ended September 30, partnership2019 or expected to be made by the Company and its Subsidiaries during any twelve (12) month period ending after September 30, limited liability company or strategic alliance agreement or other similar Contract with a third party2019 are greater than $5,000,000;
(viixv) any Contract that obligates all material Contracts pursuant to which the Company or any of its Subsidiaries to make (A) receives or is granted any loans, advances license or capital contributions sublicense to, or investments incovenant not to be sued under, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of to Software that is commercially available softwareon non-discriminatory pricing terms) or (B) permitting grants any third person license or sublicense to, or covenant not to usebe sued under, enforce or register any material Intellectual Property, including any material license agreements Property (other than customary immaterial, non-exclusive licensing provisions included licenses granted in customer, supplier, and co-packing agreementsthe ordinary course of business), coexistence agreements and covenants not to ▇▇▇;
(ixxvi) any Contracts or other transactions with any (A) executive officer or director of the Company, (B) record or, to the knowledge of the Company, beneficial owner of five percent (5%) or more of the voting securities of the Company (including TD Bank), or (C) affiliate (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Securities Exchange Act) of any such executive officer, director or beneficial owner (each of the foregoing, a “Related Party” and each such Contract, a “Related Party Contract”);
(xvii) any other Contract that is expected required to result in the payment or receipt of more than $30,000,000 be filed by the Company and its Subsidiaries in 2016;pursuant to Item 601(b)(10) of Regulation S-K; and
(xxviii) any other Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither All of the Company nor any Material Contracts are, subject to the Bankruptcy and Equity Exceptions, valid and binding obligations of the Company or a Subsidiary of the Company is in breach of or default under (as the terms of any Company Material Contract case may be) and, to the knowledge of the Company, no each of the other party to any parties thereto, and in full force and effect and enforceable in accordance with their respective terms against the Company Material Contract is in breach of or default under its Subsidiaries (as the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction orcase may be) and, to the knowledge of the Company, through each of 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 other parties thereto (except for such Company Material ContractContracts that are terminated after the date of this Agreement in accordance with their respective terms; provided that if such termination is at the option of the Company or any of its Subsidiaries, such termination must be in each case the ordinary course of business), except as where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each To the knowledge of the Company, no Person is seeking to terminate or challenging the validity or enforceability of any Company Material Contract is Contract, except such terminations or challenges which have not had and would not reasonably be expected to have, individually or in the aggregate, a valid and binding obligation of Company Material Adverse Effect. Neither the Company or the Subsidiary nor any of the Company that is party thereto andits Subsidiaries, nor to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge any of the Companyother parties thereto has violated any provision of, threatened or committed or failed to perform any act which (with respect to or without notice, lapse of time or both) would constitute a default under any Company Material Contractprovision of, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultthat it has violated or defaulted under, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has for those violations and defaults (or potential defaults) which have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Schwab Charles Corp), Merger Agreement (Td Ameritrade Holding Corp)
Material Contracts. (a) To the extent permissible under the Antitrust Laws, Section 4.18(a3.21(a) of the Company Disclosure Schedule sets forth Letter contains a true true, complete and complete list, as of the date of this Agreement, correct list of the following Contracts to which the Company or any 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, excluding Company Plans listed in Section 3.18(b) of the Company Letter and Company Property Leases listed in Section 3.15(a) of the Company Letter (collectively, the “Material Contracts”):
(i) each Contract that limits in any material respect the freedom of the Company or any of its Subsidiaries to compete or engage in any line of business or geographic region or with any Person, or that otherwise has the effect of restricting in any material respect the Company or its Subsidiaries from the development, marketing or distribution of services or ownership or leasing of property;
(ii) each Customer Contract with a top ten (10) Customer of the Company and its Subsidiaries (each, a “Material Customer”) based on monthly recurring revenue received by the Company and its Subsidiaries in the six month period ended June 30, 2019 (such Customer Contracts, the “Material Customer Contracts”);
(iii) 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 provided revenue to the Company and its Subsidiaries in excess of €5,000,000 in 2018 or is expected to provide annual revenue to the Company and its Subsidiaries in excess of €5,000,000 in 2019;
(iv) each Contract entered into since December 31, 2016: (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 in the Company or any of its Subsidiaries), in the case of each of clauses (A) and (B), valued in excess of €10,000,000;
(v) each Contract with respect to the acquisition or disposition of any Person, the disposition of any Real Property or Additional Real Property or the acquisition of any real property (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 obligation or obligation for unpaid consideration, or (B) any “earn-out” or similar contingent payment obligations, in the case of each of clauses (A) and (B), that would reasonably be expected to result in future payments of more than €5,000,000;
(vi) each Contract granting a right to material Intellectual Property Rights (other than Contracts with respect to generally commercially available software and hardware and Customer Contracts entered into in the ordinary course of business);
(vii) 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 or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(viii) each Contract pursuant to which a Third Party is granted any exclusivity rights (other than customization work for Customers) relating to or “most favored nations” provisions that is binding on the Company or its Subsidiaries, in each case, which Contract is not terminable by the Company and each of its Subsidiaries party to such Contract upon ninety (90) or fewer days’ notice by the Company or its relevant Subsidiaries without the requirement of any payment, penalty, premium, fee, liability or other obligations;
(ix) other than instruments providing for indebtedness pursuant to which the current amount of outstanding indebtedness is equal to or less than €5,000,000, 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;
(x) any Contract evidencing a settlement of any Action under which the Company or any of its Subsidiaries has any remaining payment obligations in excess of €1,000,000 or material restrictions on operations;
(xi) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any Contract under which the aggregate annual rental payments do not exceed €5,000,000;
(xii) any Contract (other than the type described in clauses (i) through (xi) above) that requires aggregate payments by or to the Company or any Subsidiary of the Company in excess of €20,000,000 per annum;
(xiii) each collective bargaining agreement or other Contract with any labor union, works council or other labor organization; and
(xiv) 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 of as promulgated by the SEC) or any Contract that is of with respect to the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;Company.
(iib) any A true, correct and complete copy of each Material Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding effect as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has been made available to Parent and Buyer or publicly filed with the SEC 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, subject to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respectClean Team Agreement. 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, Except for matters 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 has not had and would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company , (i) each Material Contract is a valid valid, binding and binding enforceable obligation of the Company or one of its Subsidiaries, on the Subsidiary of the Company that is party thereto one hand, and, to the knowledge of the Company, of each 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. There are no disputes pending or, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract and, to the knowledge of the Company, threatened with respect each other party to any Company each Material Contract has performed all obligations required to be performed by it under such Material Contract, (iii) none of the Company or any 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 or material breach under) any Material Contract and (iv) neither the Company nor any of its Subsidiaries has received any written notice of the intention of from any other party to any Company such Material Contract that such party intends to terminate for defaultterminate, convenience or otherwise not renew, any Company such Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Purchase Agreement (InterXion Holding N.V.), Purchase Agreement (Digital Realty Trust, Inc.)
Material Contracts. (a) Section 4.18(a) of Except for this Agreement and except for Contracts disclosed in the Data Room or filed as exhibits to the Company Disclosure Schedule sets forth a true and complete list, as of SEC Reports filed with the SEC prior to the date of this Agreement, as of the following Contracts to which date hereof, none of the Company or any of its Subsidiaries is a party to or by which the Company or any of its Subsidiaries is boundbound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under filed by the Company pursuant to Item 404(a) 4 of Regulation Sthe Instructions to Exhibits of Form 20-K promulgated F under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on involving the right payment or ability receipt of amounts by the Company, Company or any of its Subsidiaries Subsidiaries, or any Affiliate of any of them relating to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsmaterial Indebtedness;
(iii) any collective bargaining agreementmaterial joint venture contracts, labor union contract or trade union agreement (eachstrategic cooperation, a “Collective Bargaining Agreement”) partnership arrangements or other works council agreementagreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(iv) any agreement relating Contract that limits, or purports to Indebtedness limit, the ability of the Company or any of its Subsidiaries having an outstanding principal amount or any of their respective employees to compete in excess any material line of $10,000,000business or with any Person or entity or in any geographic area or during any period of time;
(v) any material Contract that provides entered into after December 31, 2010, for the acquisition or disposition disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of any assets (other than obligations set forth in the assets purchased pursuant to capital expenditure budget set forth on Section 6.1(hexpenditures) or share capital or other equity interests of another Person, which is material to the Company Disclosure Schedule and acquisitions its Subsidiaries, taken as a whole;
(vi) any Contract between or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to among the Company or any of its Subsidiaries;
, on the one hand, and any of their respective Affiliates (vi) other than the Company or any joint ventureof its Subsidiaries), partnershipon the other hand, limited liability company or strategic alliance agreement or other similar Contract with that involves an amount of payments which is material to the Company and its Subsidiaries, taken as a third partywhole;
(vii) any Contract that obligates between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to make any loans, advances be disclosed pursuant to Item 7B or capital contributions to, or investments in, any personItem 19 of Form 20-F under the Exchange Act;
(viii) any each Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) granting such Contract requires any payment in an amount which is material to the Company and its Subsidiaries, taken as a whole, to be made by the Company or one any of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person the value of the outstanding receivables due to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries under such Contract is in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that an amount which is material to the Company and its Subsidiaries, taken as a whole; and
(xiix) any Contract with any Top Supplier other contracts and agreements, whether or Top Customer, other than, not made in the case ordinary course of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of business, which are material to the Company Disclosure Scheduleand its Subsidiaries, Contracts thattaken as a whole, in or the aggregateconduct of their respective businesses, do not represent purchases or sales, respectively, constituting the absence of which would have a majority of purchases from Company Material Adverse Effect. Each such Top Supplier or sales to such Top Customer. All contracts of the types referred to Contract described in clauses (i) through (xiix) above, are whether or not filed as an exhibit to the Company SEC Reports or disclosed in the Company Disclosure Schedule or the Data Room, is referred to herein as a “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 AgreementContract”.
(b) Neither As of the date hereof, except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the other parties thereto, (ii) neither the Company nor any Subsidiary of its Subsidiaries nor, to the Company Company’s Knowledge, any other party thereto is in breach of or violation of, or default under the terms of under, any Company Material Contract and, to the knowledge of the Company, and no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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’s Knowledge, 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 violation of, or default under the terms of under, any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of (iii) to the Company’s Knowledge, 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has have not received any written claim or notice of the intention of any other party to any Company Material Contract to terminate for default, convenience termination or otherwise cancellation under any Company such Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (NewQuest Asia Fund I, L.P.), Merger Agreement (China Hydroelectric Corp)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule 5.16 sets forth a true and complete list, as of the date of this Agreement, all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound (collectively, the Company or any of its Subsidiaries is bound:“Material Contracts”):
(i) Contracts with any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) Seller or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right current or ability of the Companyformer officer, any of its Subsidiaries director, stockholder or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(viii) Contracts with any joint venture, partnership, limited liability company labor union or strategic alliance agreement association representing any employee of the Company or other similar Contract with any of its Subsidiaries;
(iii) Contracts pursuant to which any party is required to purchase or sell a third stated portion of its requirements or output from or to another party;
(viiiv) Contracts for the sale of any Contract that obligates of the assets of the Company or any of its Subsidiaries other than in the Ordinary Course of Business or for the grant to make any loansPerson of any preferential rights to purchase any of its assets;
(v) Contracts for joint ventures, advances strategic alliances or partnerships;
(vi) Contracts containing covenants of the Company or any of its Subsidiaries not to compete in any line of business or with any Person in any geographical area or covenants of any other Person not to compete with the Company or any of its Subsidiaries in any line of business or in any geographical area;
(vii) Contracts relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital contributions to, or investments in, stock of any personother Person;
(viii) Contracts relating to the incurrence, assumption or guarantee of any Contract (A) granting the Company Indebtedness or one imposing a Lien on any of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇assets;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by Contracts under which the Company and or any of its Subsidiaries in 2016has made advances or loans to any other Person;
(x) any Contract relating to Contracts providing for severance, retention, change in control or other similar payments;
(xi) Contracts for the supply employment of any item used individual on a full-time, part-time or consulting or other basis;
(xii) Contracts for the provision of goods or services involving consideration in excess of $50,000 annually or $100,000 in the aggregate over the term of the Contract and not terminable by the Company or a the applicable Subsidiary upon thirty (30) days’ notice or less;
(xiii) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the Company or any of its Subsidiaries;
(xiv) Contracts (or group of related contracts) which involve the expenditure of more than $50,000 annually or $100,000 in the aggregate or require performance by any party more than one (1) year from the date hereof;
(xv) Contracts involving any royalty payments on Intellectual Property; and
(xvi) Contracts that is a sole source of supply of any raw material, component or service that is are otherwise material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Stock Purchase Agreement (T-3 Energy Services Inc), Stock Purchase Agreement (T-3 Energy Services Inc)
Material Contracts. (a) Except for this Agreement, any Employee Plans and the Contracts filed as exhibits to the Company SEC Documents that are available as of the date of this Agreement, Section 4.18(a4.21(a) of the Company Disclosure Schedule sets forth Letter contains a true complete and complete correct list, as of the date of this Agreement, of each of the following Contracts to which the Company or any of its Subsidiaries is a party or which bind their respective properties or assets, and except as provided in this Section 4.21(a), to the extent that any such Contract is to be performed in whole or in part or is a Contract under which the Company or its Subsidiaries has any material obligations after the date hereof:
(i) each Contract that involves performance of services or delivery of goods, products or developmental, consulting or other services commitments by which the Company or any of its Subsidiaries, that provided for payments to the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined of $6,000,000 or more in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company’s fiscal year ended December 26, any 2020, or is reasonably expected to result in such payments in the Company’s current fiscal year, other than Contracts terminable by the Company or one of its Subsidiaries on no more than 120 days’ notice without liability, payment or any Affiliate ongoing obligation on the part of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(viii) any joint ventureeach Contract that involves performance of services or delivery of goods, partnershipmaterials, limited liability company supplies or strategic alliance agreement equipment or developmental, consulting or other similar Contract services commitments to the Company or any of its Subsidiaries, or the payment therefor by the Company or any of its Subsidiaries, and that provided for payments by the Company of $6,000,000 or more in the Company’s fiscal year ended December 26, 2020, or is reasonably expected to result in such payments in the Company’s current fiscal year, other than Contracts terminable by the Company or one of its Subsidiaries on no more than 120 days’ notice or in connection with a third partyan annual renewal without liability, payment or ongoing obligation on the part of the Company or any of its Subsidiaries;
(viiiii) any each Contract that obligates contains any provisions restricting the Company or any of its Subsidiaries from competing or engaging in any activity or line of business or with any Person or in any area or pursuant to make which any loansbenefit or right is required to be given or lost as a result of so competing or engaging or which, advances pursuant to its terms, is reasonably expected to have such effect after the Closing solely as a result of the consummation of the transactions contemplated hereby, except for such restrictions that are not material to the Company or its Subsidiaries, taken as a whole;
(iv) each material Contract that (A) grants any exclusive rights to any Third Party, including any exclusive license or supply or distribution agreement or other exclusive rights or which, pursuant to its terms, would reasonably be expected to have such effect after the Closing solely as a result of the consummation of the transactions contemplated hereby, (B) grants any rights of first refusal or rights of first negotiation to any Third Party with respect to any product, service or Company Intellectual Property, (C) contains any provision that requires the purchase of all or any portion of the Company’s or any of its Subsidiaries’ requirements from any Third Party or (D) grants “most favored nation” rights, except in the case of each of clauses (A), (B), (C) and (D) for such rights and provisions that are not material to the Company and its Subsidiaries, taken as a whole;
(v) each material Contract pursuant to which the Company or any of its Subsidiaries is granting or is granted any license to Intellectual Property (other than nonexclusive licenses granted in the ordinary course of business), except for (a) Contracts with current and former employees, contractors, or consultants of the Company or any of its Subsidiaries, (b) nondisclosure agreements, (c) licenses for open source software, (d) non-exclusive licenses to available commercial software and (e) any other agreements that are not material to the Company and its Subsidiaries, taken as a whole;
(vi) each Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (A) with an available principal amount (whether or not such available principal amount is outstanding) not exceeding $6,000,000 or (B) between or among any of the Company and its Subsidiaries;
(vii) each Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, capital contributions contribution to, or investments other investment in, any personPerson (except for the Company or any of its Subsidiaries), other than (A) extensions of credit in the ordinary course of business and (B) investments in marketable securities in the ordinary course of business;
(viii) any each Contract (A) granting under which the Company or one any of its Subsidiaries has any right to use any material Intellectual Property obligations (including indemnification obligations) which have not been satisfied or performed (other than licenses confidentiality obligations) relating to the acquisition or disposition of all or any portion of any business or the assets or properties of any business (whether by merger, sale of shares, sale of assets or otherwise) for consideration in respect excess of commercially available software) $10,000,000, except for acquisitions or (B) permitting any third person to usedispositions of inventory, enforce or register any material Intellectual Property, including any material license agreements (properties and other than customary non-exclusive licensing provisions included assets in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇the ordinary course of business;
(ix) any each partnership, joint venture or other similar Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service arrangement that is material to the Company and its Subsidiaries, taken as a whole;
(x) each Contract between the Company or any of its Subsidiaries, on the one hand, and any current director or officer of the Company or any Person (or any of their Affiliates) beneficially owning five percent or more of the Company Stock or OpCo Units, on the other hand, except for any commercial Contracts entered into on arm’s length terms in the ordinary course of businesses and except for any Employee Plans;
(xi) each Contract entered into since January 1, 2021 in connection with the settlement or other resolution of any Action under which the Company or any of its Subsidiaries have any material continuing obligations, liabilities or restrictions, or that involved payment (or an obligation to make a payment) by the Company or any of its Subsidiaries of more than $6,000,000;
(xii) each Contract or agreement with any Governmental Authority under which the Company or any of its Subsidiaries received payments in excess of $6,000,000 in the Company’s fiscal year ended December 26, 2020, or is reasonably expected to result in such payments in the Company’s current fiscal year;
(xiii) each Contract required to be filed by the Company pursuant to Item 601(b)(10) of Regulation S-K under the 1933 Act; and
(xixiv) any each Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of that commits the Company Disclosure Schedule, or its Subsidiaries to enter into any Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to described in the foregoing clauses (i) through (xi) above, 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 Agreementxiv).
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Effect on the Company, as of the date hereof, each Contract filed as an exhibit to the Company SEC Documents or required to be disclosed in Section 4.21(a) of the Company Disclosure Letter or of such type entered into after the date of this Agreement (each, a “Material Contract Contract”) (unless it has terminated or expired (in each case according to its terms)) is in full force and effect and is a legal, valid and binding obligation agreement of the Company or its Subsidiary, as the Subsidiary of the Company that is party thereto case may be, and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending orenforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, threatened against the other party or parties thereto, in each case, in accordance with respect to any Company Material Contractits terms except as such enforceability may be limited by bankruptcy, insolvency, moratorium and neither other similar Applicable Law affecting creditors’ rights generally and by general principles of equity. Neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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, ornor, to the knowledge of the Company, threatened 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 constitute a default thereunder by any party thereto, except for such breaches and defaults which would not, individually or in the aggregate, reasonably be expected to do any of the foregoinghave a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Material Contracts. (a) Except as otherwise disclosed in Section 4.18(a) 2.12 of the Parent Disclosure Letter, neither the Company Disclosure Schedule sets forth nor any Company Subsidiary is a true party to or bound by any contract, arrangement, commitment or understanding (whether written or oral):
(i) which is an employment agreement between the Company or a Company Subsidiary, on the one hand, and complete listany of its officers, as directors or employees, on the other hand, excluding any unwritten agreement that provides de minimis working condition benefits and is terminable unilaterally by the Company or the Company Subsidiaries without liability;
(ii) which, upon the consummation of this Agreement and the date of transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events, including the following Contracts passage of time) result in any material payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to which any material payment or benefits, from the Company or any of its the Company Subsidiaries to any officer, director, consultant, agent or employee of any of the foregoing;
(iii) which is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” contract (as such term is defined in Item 601(b)(10601(b)(10)(i) or 601(b)(10)(ii) of Regulation S-K of the SECSecurities Act) or any Contract that is of the type that would be required to be disclosed under Item 404(a) performed on or after the date of Regulation S-K promulgated under the Exchange Actthis Agreement;
(iiiv) except for intercompany transactions among the Company and the Company Subsidiaries in the ordinary course of business consistent with past practice, relating to the borrowing of money (including any Contract guarantee thereof) or that is a mortgage, security agreement, capital lease or similar agreements, in each case in excess of $75,000 or that creates a Lien on any asset of the Company or any Company Subsidiary;
(Av) imposes relating to the sale of any restriction on of the right assets or properties of the Company or any of the Company Subsidiaries, except inventory sold or to be sold in the ordinary course of the Company’s or the Company Subsidiaries’ business;
(vi) relating to the acquisition by the Company or any of the Company Subsidiaries of any assets, operating business or the capital stock of any other Person, except inventory purchased in the ordinary course of the Company’s or the Company Subsidiaries’ business;
(vii) which limits the ability of the Company, any of its Subsidiaries Company or any Affiliate of any of them Company Subsidiary to (x) compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in conduct any line of business or compete with any Person or in any geographic areaarea or distribution or sales channel, (y) sell, supply or distribute any service or product, or (Bz) obligates offer or purchase the Company assets or its Subsidiaries (or following the Effective Timeequity securities of another Person, Parent or its Subsidiaries) to conduct business with in each case, during any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsperiod of time;
(iiiviii) any collective bargaining which is a joint venture agreement, labor union joint operating agreement, partnership agreement or other similar contract or trade union agreement (each, involving a “Collective Bargaining Agreement”) sharing of profits and expenses with one or more other works council agreementPersons;
(ivix) which is a shareholder rights agreement or which otherwise provides for the issuance, registration or voting of any agreement relating to Indebtedness securities of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;the Company Subsidiaries; or
(vx) any Contract that provides for the acquisition or disposition which requires a consent to a change of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) control of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;the Company Subsidiaries or to an assignment of the contract, arrangement, commitment or understanding by the Company to another Person, as the case may be; or
(vixi) any joint ventureother than those agreements listed in clauses (i) to (x) above, partnership, limited liability company which provides for the annual aggregate payment or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates receipt by the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company Subsidiaries of amounts in excess of $75,000 individually within the next 12 months and is not terminable without premium or one of its Subsidiaries any right to use any material Intellectual Property (other penalty on less than licenses in respect of commercially available software) 30 days’ notice. Each contract, arrangement, commitment or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary understanding of the Company that type described in this Section 2.12(a) is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as a “Company Material Contracts.Contract” and is listed in Section 2.12 of the Parent Disclosure Letters. The Company has made available to Parent prior to the date of this Agreement a PESI true, complete and correct copy copies of each Company Material Contract as in effect on the date of this AgreementContract.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Each Company Material Contract is valid and binding and in breach full force and effect and the Company and each of or default the Company Subsidiaries has performed all obligations required to be performed by them to date under the terms of any each Company Material Contract, the failure of which, individually or in any material respectthe aggregate, have a Material Adverse Effect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the knowledge Except as set forth on Section 2.12 of the CompanyParent Disclosure Letter, through the action or inaction of any third partyand except for such matters as have not had, 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 has not had and would could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (i) none of Parent, the Company or any of the Company Subsidiaries has received written notice of, and to Parent’s or the Company’s Knowledge, there does not exist, any breach of or violation or default under any of the terms, conditions or provisions of any Company Material Adverse EffectContract and (ii) neither Parent, the Company nor any of the Company Subsidiaries has received written notice of, and to Parent’s or the Company’s Knowledge there does not exist, the desire of the other party or parties to any such Company Material Contract to exercise any rights such party has to cancel, terminate or repudiate such Company Material Contract or exercise remedies thereunder. Each Company Material Contract is a valid and binding obligation of enforceable by the Company or the a Company Subsidiary of the Company that is party thereto andin accordance with its terms, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had such enforcement may be subject to or limited by (x) bankruptcy, insolvency, reorganization, moratorium or other Laws, now or hereafter in effect, affecting creditors’ rights generally and would not reasonably be expected to have, individually (y) the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in the aggregate, a Company Material Adverse Effectequity).
(c) Since January 1, 2016 to Except for the date hereofCompany Credit Agreement and except as disclosed in Section 2.12 of the Parent Disclosure Letter, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with agreement relating to any indebtedness for borrowed money of the Company or any Subsidiary of the Company, given Company Subsidiaries contains any restrictions (other than customary notice to provisions) upon (i) the prepayment of any indebtedness of the Company or any Subsidiary of the Company of any intention to cancelSubsidiaries, terminate or substantially curtail its relationship with (ii) the incurrence by the Company or any Subsidiary of the CompanyCompany Subsidiaries of any indebtedness for borrowed money, or, to or (iii) the knowledge ability of the Company, threatened to do Company or any of the foregoingCompany Subsidiaries to grant any Lien on the properties or assets of the Company or any of the Company Subsidiaries. Under the terms of the Company Credit Agreement, the Company is permitted to prepay, upon 30 days prior written notice and without any form of prepayment penalty, all indebtedness outstanding thereunder and obtain a release of all Liens on the assets of the Company and the Company Subsidiaries which secure such indebtedness.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Perma Fix Environmental Services Inc), Stock Purchase Agreement (Homeland Security Capital CORP)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date For purposes of this Agreement, “Company Material Contract” shall mean any of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company it or any of its Subsidiaries is assets are bound:
: (i) any agreement relating to indebtedness for borrowed money in excess of $500,000, (ii) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required with respect to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or and its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
; (iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of providing for the Company indemnification or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used guarantee by the Company or a Subsidiary of the Company that is a sole source of supply of any raw materialperson, component except an agreement entered into in the ordinary course of business, (iv) any joint venture, partnership or service similar document or agreement, (v) any agreement that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, license, pledge or otherwise dispose of any assets having an aggregate value in excess of $2.5 million, (vi) any Contract listed in Section 2.2(b) of the Company Disclosure Letter, (vii) any employment, contractor or consulting Contract with any executive officer or other employee of the Company and its Subsidiaries earning an annual salary in excess of $200,000 (and, with respect to the Company’s and its Subsidiaries’ Indian operations, any employment, contractor or consulting Contract with any executive officer or other employee earning an annual salary in excess of $50,000) or member of the Company’s Board of Directors, other than those that are terminable by the Company or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation to the Company or any of its Subsidiaries; (viii) any material lease of real property; (ix)any Contract with any Key Company Client containing “most favored nation” provisions, (x) agreements, contracts or letter of intent regarding proposed or any pending acquisition of a Person or business, (xi) Contracts under which the Company or any of its Subsidiaries has loaned or advanced any material amounts to any Person (other than advances to Employees in the ordinary course of business), (xii) contracts under which the Company is obligated to pay an amount in excess of $2.5 million annually, and (xiii) any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole; and any contract or other agreement not made in the ordinary course of business which is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier , or Top Customer, other than, in which would prohibit or delay the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) consummation of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases Merger or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts any of the types referred to in clauses (i) through (xi) above, 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 transactions contemplated by this Agreement.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Cap Gemini Sa), Merger Agreement (Kanbay International Inc)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as As of the date of this Agreementhereof, of neither the following Contracts Company nor any Subsidiary is a party to which or bound by:
(i) any agreement relating to the pharmacy benefit administration and management services business owned or operated by the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would reasonably be required expected to be disclosed under Item 404(a) generate net annualized revenues in an amount in excess of Regulation S-K promulgated under the Exchange Act$5 million;
(ii) any Contract that (A) imposes any restriction on the right material partnership, joint venture or ability of the Company, any of its Subsidiaries other similar agreement or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsarrangement;
(iii) any collective bargaining agreementagreement entered into after January 31, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement 2007 relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or material business (whether by merger, sale of stock, sale of assets or otherwise);
(iv) and that contains representationsany agreement for the purchase or sale of materials, covenantssupplies, indemnities goods, services, equipment or other obligations assets providing for either annual payments by or to the Company and its Subsidiaries of $30 million or more that cannot be terminated on not more than 60 days’ notice without payment by the Company or any Subsidiary of any material penalty;
(including “earnout” v) any agreement relating to indebtedness for borrowed money or other contingent payment obligationsthe deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) with an aggregate committed or outstanding as principal amount exceeding $10 million;
(vi) any agreement containing any provision or covenant limiting in any material respect the ability of the date Company or any of this Agreement that are material its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell any products or services of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party);
(vii) any Contract agreement between the Company or any of its Subsidiaries, on the one hand, and any Affiliate, director or officer (or, to the Company’s knowledge, any of their respective Affiliates), on the other hand in each case of the type and amount that obligates would be required to be disclosed in the Company’s annual proxy statement under Item 404 of Regulation S-K under the 1933 Act that has not been previously disclosed in the Company SEC Documents; or
(viii) any agreement that requires annual payments in excess of $5 million or is otherwise material containing any provision pursuant to which the execution, delivery and performance of this Agreement, or the consummation of the transactions contemplated hereby, would require any consent or other action by any Person thereunder, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, thereunder, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreemententitled thereunder.
(b) Neither the Company nor any Subsidiary of the Company is in breach of Except for breaches, violations or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and defaults which 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 binding obligation , (i) each contract disclosed or required to be disclosed in Section 5.20 of the Company or the Subsidiary of the Company that Disclosure Schedule (each, a “Material Contract”) is party thereto and, to the knowledge of the Company, of each other party thereto, valid and is in full force and effect. There are no disputes pending oreffect and (ii) neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge of the Company, threatened with respect any other party to any Company Material Contract, has violated any provision of, or taken any action which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under, or providing for the termination of, any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (CVS Caremark Corp), Merger Agreement (Longs Drug Stores Corp)
Material Contracts. (a) Section 4.18(aSchedule 2.16(a) of the Company Disclosure Schedule Letter sets forth a true and complete list, as list (with each of such Contracts specifically identified under subsection(s) of such Schedule 2.16(a) that correspond to the date Subsection or Subsections of this Agreement, Section 2.16(a) applicable to such Contract) of the following Contracts to which the an Acquired Company or any of its Subsidiaries is a party or by which an Acquired Company is bound as of the Company Original Agreement Date (each such Contract whether in effect as of the Original Agreement Date, or any of its Subsidiaries is bound:if entered into between the Original Agreement Date and the Closing in compliance with Article V, a “Material Contract”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) Contract with a Key Customer or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActKey Supplier;
(ii) any dealer, distributor, referral or similar agreement, or any Contract that (A) imposes providing for the grant of rights to reproduce, license, market, refer or sell Company Products to any restriction other Person or pursuant to which any third parties advertise on the right or ability of the any websites operated by an Acquired Company, any of its Subsidiaries or any Affiliate of any of them in each case, other than non-exclusive licenses granted to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsvendors for the limited purpose of providing services to an Acquired Company;
(iii) (A) any collective bargaining agreementjoint venture Contract, labor union contract (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or trade union agreement losses with other Persons and (each, a “Collective Bargaining Agreement”C) or any Contract that involves the payment of royalties to any other works council agreementPerson (other than license fees in respect of Intellectual Property);
(iv) any separation agreement relating to Indebtedness of the or severance agreement with any current or former employees, in each case, under which an Acquired Company has or had any of its Subsidiaries having an outstanding principal amount actual or potential Liability in excess of $10,000,000100,000;
(v) any Contract that provides for or relating to the acquisition employment or disposition service of any assets director, officer or beneficial owner of more than 1% of the total number of any class of Shares (or of any Equity Interests in a Subsidiary of the Company) or any other type of Contract (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(hContracts granting Company Options) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or with any of its Subsidiariesofficers or beneficial owners of more than 1% of the total number of any class of Shares (or of any Equity Interests in a Subsidiary of the Company), as the case may be, that is not immediately terminable by the Company without cost or Liability of less than $25,000;
(vi) any joint ventureContract (A) 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, partnershipCompany Intellectual Property or Company Data owned by the Company, limited liability company or strategic alliance agreement (B) containing any non-competition covenants or other similar Contract restrictions relating to the Company Products or Company Intellectual Property (excluding agreements entered into with a third partynew hires in the ordinary course of business and consistent with past practice) or (C) that materially limits or would materially limit the freedom of an Acquired Company or its successors (including assigns and their respective Affiliates) to (I) 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 the Company Intellectual Property, or to make use of any Company Intellectual Property, including any grants by an Acquired Company of exclusive rights or licenses or (II) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services;
(vii) any Contract that obligates the standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of an Acquired Company or any assets of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personan Acquired Company;
(viii) other than Commercially Available Licenses, each Acquired Company’s licenses to service providers and any confidentiality, secrecy or non-disclosure Contract entered into by an Acquired Company in the ordinary course of business and consistent with past practice, all licenses, sublicenses and other Contracts to which an Acquired Company is a party and pursuant to which: (A) granting the an Acquired Company acquired or one of its Subsidiaries any right is authorized to use any material Third-Party Intellectual Property (other than licenses used in respect the development, marketing or licensing of commercially available software) the Company Products or (B) permitting any third person Person is authorized to use, enforce or register use any material Company-Owned Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any license, sublicense or other Contract that is expected pursuant to result which an Acquired Company has agreed to any material restriction on the right of an Acquired Company to use or enforce any Company-Owned Intellectual Property or pursuant to which an Acquired Company agrees to sell rights in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016any Company-Owned Intellectual Property;
(x) any Contract relating to providing for the supply development of any item used material software, technology or other Intellectual Property, independently or jointly, either by or for an Acquired Company (other than employee invention assignment agreements and consulting agreements on the Company’s standard form of agreement) (collectively with the Contracts described in Sections 2.16(a)(viii) and 2.16(a)(ix), the “Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andIntellectual Property Agreements”);
(xi) any Contracts relating to the membership of, or participation by, an Acquired Company in, or the affiliation of an Acquired Company with, any industry standards group or association;
(xii) (A) any material settlement agreement with respect to any Legal Proceeding, and (B) any separation agreement, severance agreement or release with any current or former employees, in each case, under which an Acquired Company has any actual Liability in excess of $250,000;
(xiii) any Contract material to the assets or business of any of the Acquired Companies as currently conducted pursuant to which rights of any third party are triggered or become exercisable as a result of the execution of this Agreement or the consummation of the Share Purchase;
(xiv) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with IFRS;
(xv) 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 or any other Equity Interests of the Company, except for the VSOPs and the Promised Company Options;
(xvi) any Contract of guarantee, surety, support, indemnification (other than pursuant to its standard customer agreements), assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person (other than an Acquired Company);
(xvii) any Contract for capital expenditures in excess of $100,000 in the aggregate;
(xviii) any Contract pursuant to which an Acquired Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving expenditures in excess of $250,000 per annum, and any Real Estate Leases;
(xix) any Contract pursuant to which an Acquired Company has acquired or disposed of a business or entity, or all or substantially all of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any similar Contract pursuant to which an Acquired Company has acquired any material ownership interest in any other Person (other than an Acquired Company);
(xx) other than Contracts relating to the provision of utilities, any material Contract with any Top Supplier Governmental Entity or Top Customerany Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each a “Government Contract”); and
(xxi) any other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do Contract not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to listed in clauses (i) through (xixx) abovethat individually had in the prior twelve-month period, are referred or would reasonably be expected to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date have a value or payment obligation in excess of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement$500,000.
(b) Neither the All Material Contracts are in written form. Each Acquired Company nor any Subsidiary has performed all of the material obligations therein required to be performed by it under any Material Contract through the Original Agreement Date and as of the Closing Date will have performed all of the material obligations therein required to be performed by it under any Material Contract through the Satisfaction Date. No Acquired Company is alleged in breach writing to be in default in respect of any Material Contract to which such Acquired Company is a party. Each of the Material Contracts is in full force and effect, subject only to the effect, if any, of the Enforceability Exceptions. There exists no default or event of default or material breach, with respect to an Acquired Company or to the knowledge of the Company, with respect to any other contracting party, that, with the giving of notice, or the lapse of time, would reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) give such other contracting party (A) the terms right to declare a default or exercise any material remedy under any Material Contract, (B) the right to a material 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 material obligation of an Acquired Company under any Material Contract andor (D) the right to cancel, terminate or modify any Material Contract. As of the Original Agreement Date, no Acquired Company has received any notice or other written communication regarding any actual or purported violation or breach of, default under, or intention to cancel or modify any Material Contract. As of the Original Agreement Date, to the knowledge of the Company, no other party to any Acquired Company Material Contract is in breach has Liability for renegotiation of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectGovernment Contracts.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Share Purchase Agreement (Applovin Corp), Share Purchase Agreement (Applovin Corp)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth XC has made available to FH a true and complete list, as copy (or written summary of all material terms) of each Material Contract in force on the date hereof and listed each such Material Contract on Section 2.20 of the date XC Disclosure Letter.
(b) For purposes of this Agreement, of the following Contracts Agreement “Material Contract” means any Contract to which the Company XC or any of its Subsidiaries is a party to or by which the Company or XC, any of its Subsidiaries or any of their respective properties or assets is boundbound that:
(i) any would be required to be filed by XC as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;,
(ii) contains any Contract that (A) imposes any restriction on non-compete or exclusivity provision or otherwise limits the right or ability freedom of the CompanyXC, any of its Subsidiaries Subsidiaries, or, to the knowledge of XC, FH or FX or any Affiliate of any of them their respective Subsidiaries after the Closing Date, to compete with any other person in any line of business or geographic region (sell, supply, acquire, obtain or that following the Effective Time will restrict the ability of Parent distribute any product or its Affiliates to engage service, in any line of business or compete each case, in any geographic areaarea in a respect or to a degree that is material, other than any Contract that can be terminated (including such restrictive provisions) by XC or (B) obligates the Company or any of its Subsidiaries on ninety (90) (or following the Effective Timefewer) days’ notice without payment by XC or any of its Subsidiaries of any material penalty, Parent premium or its Subsidiariesother amount payable thereunder as a result of such termination and not in respect of amounts accrued but unpaid prior to such termination,
(iii) to conduct business with contains any third party on a preferential or exclusive basis or which contains “most favored nation” rights pricing provisions binding XC, any of its Subsidiaries, or, to the knowledge of XC, FH or similar rights;
FX or any of their respective Subsidiaries after the Closing Date, in a Contract with any Third Party, in a respect or to a degree that is material, other than any Contract that can be terminated (iiiincluding such provision) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company by XC or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
on ninety (v90) any Contract that provides for the acquisition (or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(hfewer) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether days’ notice without payment by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates the Company XC or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (penalty, premium or other than licenses amount payable thereunder as a result of such termination and not in respect of commercially available software) or (B) permitting any third person amounts accrued but unpaid prior to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;such termination,
(ixiv) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating relates to the supply Organizational Documents of any item used by partnership, joint venture or similar arrangement to the Company extent such partnership, joint venture or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that similar arrangement is material to the Company XC and its Subsidiaries, taken as a whole; and,
(xiv) (A) requires or provides for capital expenditures (or series of capital expenditures) by XC or any of its Subsidiaries in an amount in excess of $25 million individually or (B) requires or specifically provides for any annual payments or receipts by XC or any of its Subsidiaries in an amount in excess of $25 million, in each case other than (x) any Contract with any Top Supplier or Top Customer, other than, entered into in the case ordinary course of each Top Supplier business or (y) any Contract that can be terminated by XC or any of its Subsidiaries on ninety (90) (or fewer) days’ notice without payment by XC or any of its Subsidiaries of any material penalty or premium,
(vi) contains an option or grants any right of first refusal or right of first offer, right of first negotiation or similar right in favor of a party other than XC or any of its Subsidiaries or that limits or purports to limit the ability of XC or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses in a respect or to a degree that is material to XC and each Top Customers identified its Subsidiaries, taken as a whole,
(vii) involves the acquisition or disposition from or to another Person, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration in Section 4.18(a)(xi)(Aexcess of $100 million (other than acquisitions or dispositions (x) of the Company Disclosure Schedule, Contracts that, inventory in the aggregateordinary course of business or (y) of capital stock of XC) entered into on or after January 1, do not represent purchases 2017 or salesthat contains material “earn-out”, respectively, constituting a majority indemnification or other contingent or deferred payment obligations that would reasonably be expected to involve payments by or to XC or any of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to its Subsidiaries after the date of this Agreement in excess of $100 million (in each case, other than acquisitions or dispositions of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of XC or its Subsidiaries),
(viii) is a complete loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those among XC and correct copy its Subsidiaries) made or entered into outside the ordinary course of each Company Material Contract business relating to indebtedness in excess of $10 million,
(ix) is with a top five (5) customer of XC and its Subsidiaries, taken as in effect on a whole, with respect to aggregate revenue from such customer during the year ended December 31, 2017, pursuant to which XC or its Subsidiaries supply products and/or services to such customer, excluding, purchase orders;
(x) is with a top five (5) supplier of XC and its Subsidiaries, taken as a whole, with respect to aggregate expenditures by XC and its Subsidiaries during the year ended December 31, 2017, pursuant to which XC or its Subsidiaries procure products and/or services from such supplier, excluding, purchase orders;
(xi) is a settlement, conciliation or similar agreement, other than any such agreement that (x) would require XC or any of its Subsidiaries to pay consideration of less than $10 million after the date of this Agreement.Agreement and (y) is limited only to the payment of money and customary confidentiality agreements,
(bxii) Neither expressly limits the Company nor ability of XC or any Subsidiary of its Subsidiaries from (A) making distributions or declaring or paying dividends in respect of their capital stock, partnership interests, membership interests or other equity interest, as the Company is in breach case may be, (B) making loans to XC or any of its Subsidiaries or default under (C) granting Liens on the terms property of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s XC or any of its Subsidiaries’ action ,
(xiii) constitutes a lease, sublease, license agreement, occupancy agreement or inaction other Contract pursuant to which XC or any of its Subsidiaries leases, subleases or licenses from another Person, or is otherwise granted a right to occupy, any material real property,
(xiv) constitutes or includes a license or non-assertion covenant granted by XC or any of its Subsidiaries to a Third Party with respect to XC Intellectual Property, which license or covenant is material to XC and its Subsidiaries, taken as a whole, excluding “shrink-wrap,” “click-wrap” or similar form end user agreements or licenses or covenants granted to customers in the ordinary course of business,
(xv) constitutes or includes a license or non-assertion covenant granted by a Third Party to XC or any of its Subsidiaries with respect to any Intellectual Property Rights, which license or covenant is material to XC and its Subsidiaries, taken as a whole, excluding commercial off-the-shelf or other non-exclusive software or technology license agreements, or
(xvi) is (x) a written employment agreement or (y) a consulting, to the knowledge of the Company, through the action independent contractor or inaction of any third party, that non-employee service provider agreement with notice or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contractan individual, in each case except as has that provides for the payment by XC or any of its Subsidiaries of more than $350,000 in any 12-month period; provided; that, for the avoidance of doubt, “Material Contracts” shall not include any Contract entered into in connection with the Dividend Loan.
(c) Except for breaches, violations or defaults which have not had and would not reasonably be expected to havebe, individually or in the aggregate, material to XC and its Subsidiaries, taken as a Company whole:
(i) each of the Material Adverse Effect. Each Company Material Contract Contracts is a valid and binding and in full force and effect and an enforceable obligation of the Company XC or the Subsidiary any of the Company that is party thereto its Subsidiaries and, to the knowledge of the CompanyXC, of the other party or parties thereto, in accordance with its terms,
(ii) XC and each of its Subsidiaries, and, to the knowledge of XC, each other party thereto, and is in full force and effect. There are no disputes pending orhas performed all obligations required to be performed by it under each Material Contract, and
(iii) neither XC nor any of its Subsidiaries, nor to the knowledge of XC, any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the Company, threatened with respect to any Company provisions of such Material Contract, and neither the Company XC nor any of its Subsidiaries has received any written notice of the intention of that it has breached, violated or defaulted under any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Share Subscription Agreement, Share Subscription Agreement (Xerox Corp)
Material Contracts. (a) Set forth in Section 4.18(a3.09(a) of the Company Disclosure Schedule sets forth Letter is a true and complete list, as of the date hereof, of this Agreement(i) each Contract that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC if such report was filed by the Company with the SEC on the date hereof, and (ii) each of the following Contracts to which the Company or any of its Subsidiaries is a party or by any of them or their respective assets or properties are otherwise bound: a Contract (A) that materially limits or purports to materially limit, curtail or restrict either the type of business in which the Company or any of its Subsidiaries (or, after giving effect to the Merger and the Subsequent Mergers, Purchaser or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business or to hire or solicit for hire for employment any individual or group, (B) that is bound:
(i) any “material contract” (an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing indebtedness in excess of $5,000,000 or that becomes due and payable upon, or provides a right of termination or acceleration as such term is defined in Item 601(b)(10) of Regulation S-K a result of, the consummation of the SECMerger, the Subsequent Mergers and the other transactions contemplated hereby; (C) that, individually or together with related Contracts, provides for any acquisition, disposition, lease, license, use, distribution or outsourcing, after the date of this Agreement, of assets, services, rights or properties with a value or requiring annual fees in excess of $5,000,000, in each case other than in the ordinary course of business consistent with past practice, or that is otherwise material to the business of the Company or any of its Subsidiaries; (D) that is a collective bargaining agreement; (E) that involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $1,000,000 in any twelve-month period, except for any Contract that is may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less other than any such Contract entered into in the type that would be required to be disclosed under Item 404(aordinary course of business consistent with past practice; (F) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A1) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness includes an indemnification obligation of the Company or any of its Subsidiaries having an outstanding principal amount with a maximum potential liability in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (1,000,000, other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory indemnification arrangements arising pursuant to Contracts that are entered into in the ordinary course of businessbusiness consistent with past practice, or (2) or business (whether by mergerprovides for, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company Company’s Knowledge, indemnification to the other party for such other party’s own negligence, gross negligence or any of its Subsidiaries;
willful misconduct; (viG) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material involves Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole, and pursuant to which the Company and/or its Subsidiaries licenses Company Intellectual Property (1) to its customers on an exclusive basis or (2) to any other person not in the ordinary course of business consistent with past practice; and
(xiH) any Contract with that provides for any Top Supplier standstill, most favored nation provision or Top Customerequivalent preferential pricing terms, other thanexclusivity or similar obligations to which the Company or any of its Subsidiaries is subject or a beneficiary thereof, in which is material to the case Company or any of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) its Subsidiaries, taken as a whole (or, following the consummation of the Company Disclosure ScheduleMerger, Contracts thatthe Subsequent Mergers and the other transactions contemplated hereby, would be material to Purchaser or any of its Subsidiaries); (I) any Contract for any joint venture, partnership or similar arrangement; or (J) any other Contract that would, or would reasonably be expected to, individually, prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement. Each such contract described in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses clause (i) and clauses (ii)(A) through (xiii)(J) aboveand together with all Contracts filed as exhibits to the Company SEC Documents (in each case, are other than any Company Plan), is referred to herein as a “Company Material ContractsContract.” The Company has made available to Parent prior to ”
(i) Each Material Contract is, and immediately after the date consummation of the transactions contemplated by this Agreement will be, a complete valid and correct copy of each Company Material Contract as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary binding obligation of the Company is in breach of and its Subsidiaries (to the extent they are parties thereto or default under the terms of any Company Material Contract bound thereby) enforceable against them and, to the knowledge Company’s Knowledge, each other party thereto, in accordance with its terms and is in full force and effect, in each case in all material respects (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles), and each of the Company and each of its Subsidiaries (to the extent they are party thereto or bound thereby) and, to the Company’s Knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under each Material Contract, and (ii) each of the Company and each of its Subsidiaries has performed in all material respects all obligations required to be performed by it under each Material Contract and it is not (with or without notice, lapse of time or both) in breach or default of any of its material obligations thereunder and, to the Knowledge of the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contractthereunder, and neither the Company nor any of its Subsidiaries has received any written notice of from the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 terminate, change the scope of rights and obligations under or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, not to the knowledge of the Company, threatened to do any of the foregoingrenew such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (RSC Holdings Inc.), Merger Agreement (United Rentals Inc /De)
Material Contracts. (a) Section 4.18(a) 3.18 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, lists each of the following Contracts oral or written contracts, agreements, licenses, notes, bonds, mortgages, indentures, commitments or other instruments or obligations (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries is a party affecting the obligations of any party thereunder) (collectively, “Contracts”) to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound (each such Contract and agreement, being a “Material Contract”) (notwithstanding anything below, “Material Contract” shall not include any Contract that (1) is terminable by the Company or any of its Subsidiaries upon 30 days’ notice without a penalty, premium or other cost, (2) will be fully performed and satisfied as of or prior to Closing or (3) is a Company Lease, a Leasehold Interest or an Employee Benefit Plan):
(a) all Contracts that call for aggregate payments to or by, or other considerations to or from, the Company or any of its Subsidiaries under such Contract of more than $1,750,000 over the remaining term of such Contract;
(b) all Contracts that call for annual aggregate payments to or by, or other consideration to or from, the Company or any of its Subsidiaries under such Contract of more than $750,000 over the remaining term of such Contract;
(c) any Contract that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any of its Subsidiaries, or any existing or future affiliate of any of them or that purports to restrict the right of the Company or any Subsidiaries or any existing or future affiliate of any of them to conduct any line of business or to compete with any Person or operate in any geographic area or location;
(d) any partnership, limited liability company agreement, joint venture or other similar agreement entered into with any third party;
(e) any Contracts for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or any other contractual right to purchase, sell, dispose of, or master lease, by merger, purchase or sale of assets or stock or otherwise, any real property;
(f) any Contract pursuant to which the Company or any of its Subsidiaries agrees to indemnify or hold harmless any director or executive officer of the Company or any of its Subsidiaries (other than the organizational documents for the Company or any of its Subsidiaries);
(g) (i) any loan agreement, letter of credit, indenture, note, bond, debenture, mortgage or any other document, agreement or instrument evidencing a capitalized leased obligation or other indebtedness, or any guarantee thereof, of, for the benefit of, or payable to the Company or any of its Subsidiaries, in each case in excess of $1,750,000, or (ii) any Contract to provide any funds to or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of the Company or other Person;
(h) any Contract concerning an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to which the Company or any of its Subsidiaries is bound:a party;
(i) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability in respect of any purchase price adjustment, earn-out or contingent purchase price or other indemnity that, in each case, could reasonably be expected to result in future payments of more than $1,750,000; or any Contract relating to the settlement or proposed settlement of any action, which involves the issuance of equity securities or the payment of an amount in excess of $750,000;
(j) any “standstill” or similar agreement, voting agreement or registration rights agreement;
(k) any Contract with any Governmental Entity;
(l) any Contract (other than among consolidated Subsidiaries of the Company) under which indebtedness is outstanding or may be incurred or pursuant to which any property or asset is mortgaged, pledged or otherwise subject to encumbrances, other than a Permitted Encumbrance, or any Contract restricting the incurrence of indebtedness or the incurrence of Encumbrances or restricting the payment of dividends or the transfer of any properties owned by the Company or any of its Subsidiaries; and
(m) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;
). Except as would not reasonably be expected to result in a Company Material Adverse Effect, (iii) neither the Company nor any Contract that (A) imposes any restriction on of its Subsidiaries is and, to the right or ability Knowledge of the Company, no other party is in breach or violation of, or default under, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region Material Contract, (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic areaii) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness none of the Company or any of its Subsidiaries having an outstanding principal amount in excess has received any claim of $10,000,000;
(v) any Contract that provides for the acquisition default under or disposition cancellation of any assets Material Contract, and (other than obligations set forth iii) no event has occurred which would result in the capital expenditure budget set forth on Section 6.1(h) a breach or violation of, or a default under, any Material Contract (in each case, with or without notice or lapse of the Company Disclosure Schedule time or both). Each Material Contract is valid, binding and acquisitions or dispositions of inventory enforceable in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) accordance with its terms and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material is in full force and effect with respect to the Company or any of its Subsidiaries;
(vi) any joint ventureSubsidiaries and, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary Knowledge of the Company that is a sole source of supply of any raw materialCompany, component or service that is material with respect to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customerparties thereto. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date true and complete copies of this Agreement a complete and correct copy of each Company all Material Contract as in effect on the date of this AgreementContracts (including any amendments or other modifications thereof).
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) Other than any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) filed as an exhibit to the Company SEC Reports filed prior to the date hereof, Section 4.16 of the SEC) or any Contract that is Company Disclosure Schedule lists each of the type that would be required following written contracts and agreements to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates which the Company or its Subsidiaries any Company Subsidiary is a party or by which any of their respective properties or assets are bound as of the date hereof (or following each such agreement and contract, including any contract filed as an exhibit to the Effective Time, Parent or its Subsidiaries) Company SEC Reports filed prior to conduct business with any third party on the date hereof being a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;Company Material Contract”):
(iiia) any collective bargaining note, bond, mortgage, indenture, contract (written or oral), agreement, labor union contract lease, license, permit, franchise or trade union agreement other binding commitment, instrument or obligation (each, a “Collective Bargaining Agreement”Contract” (other than among consolidated Company Subsidiaries or any lease for real property) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries (i) indebtedness for borrowed money and having an outstanding principal amount in excess of $10,000,000;
5.5 million or (vii) any Contract that provides for conditional sale arrangements, obligations secured by a Lien, or interest rate or currency hedging activities, in each case in connection with which the acquisition aggregate actual or disposition of any assets (other than contingent obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory the Company Subsidiaries under such Contract are greater than $5.5 million, in each case, other than customer service agreements entered into in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(viib) any Contract that obligates purports to limit the right of the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company Subsidiaries (i) to engage or one compete in any line of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) business or (Bii) permitting to compete with any third person to useor operate in any location, enforce or register any material Intellectual Property, including any material license agreements in the case of each of (other than customary non-exclusive licensing provisions included in customer, supplier, i) and co-packing agreements(ii), coexistence agreements and covenants not in any respect material to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt business of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xic) any Contract with for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract in excess of $5.5 million. Notwithstanding anything in this Section 4.16, “Company Material Contract” shall not include any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses Contract that (i) through is terminable by the Company or a Company Subsidiary upon one hundred and twenty (xi120) abovedays’ or less notice without a penalty premium, are referred to herein (ii) will be fully performed or satisfied as “Company Material Contracts.” The Company has made available to Parent of or prior to Closing, or (iii) is solely between the date of this Agreement Company and one or more wholly-owned Company Subsidiaries or is solely between wholly-owned Company Subsidiaries. Except as would not reasonably be expected to have a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement.
Adverse Effect, (bi) Neither neither the Company nor any Company Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, any Company Material Contract, in (ii) none of the Company or any material respect. No Company Subsidiary has received any claim of default under any such agreement, and (iii) no event has occurred which would result in a breach or not occurred through the Company’s violation of, or a default under, any of its Subsidiaries’ action Company Material Contract (in each case, with or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that with without 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 both). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Each , each Company Material Contract is a valid valid, binding and binding obligation of enforceable in accordance with its terms and is in full force and effect with respect to the Company or the Subsidiary of the Company that is party thereto Subsidiaries, as applicable, and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectparties hereto.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (PRA International), Merger Agreement (PRA International)
Material Contracts. (a) Section 4.18(a) For all purposes of and under this Agreement, a “Material Contract” of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following or its Subsidiaries shall mean (all such Material Contracts to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties, rights or assets are bound, the “Material Contracts”):
(i) any Contract listed or required to be listed as an exhibit to the Company’s annual report on Form 20-F for the year ending December 31, 2016;
(ii) any Contract that requires payments from or to the Company or any of its Subsidiaries of more than $500,000 during the past twelve (12) month period or during the twelve (12) month period following the date hereof and is bound:not cancelable by the Company or its Subsidiaries without any financial or other penalty upon notice of ninety (90) days or less;
(iiii) any “Contract that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity (whether a corporation, limited liability company or any other entity type) or similar arrangement;
(iv) any Contract (other than any Contract whose only parties are the Company and/or its Subsidiaries) relating to Indebtedness for borrowed money owing or guaranteed by the Company or its Subsidiaries, other than any Contract relating to Indebtedness with an outstanding principal amount of less than $250,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Contract under which the Company or its Subsidiaries has made any advance, loan, extension of credit or capital commitment to, or other investment in, any Person in excess of $250,000 (other than the Company or its Subsidiaries and except for any extensions of trade credits in the ordinary course of business consistent with past practice);
(vi) any Contract (A) that contains a license in respect of Intellectual Property Rights where such license is material contract” to the business of the Company or its Subsidiaries (except for (1) licenses of commercially available, off-the-shelf, click-wrap or shrink-wrap software, (2) non-exclusive licenses of Intellectual Property Rights incidental to the sale or purchase of products or services in the ordinary course of business consistent with past practice) or (B) for the development (by itself or through a third party) of any Intellectual Property Rights material to the current products of the Company or the manufacturing thereof;
(vii) any Contract to which the Company is a party that contains any continuing covenant by, or restriction on, the Company or any of its Subsidiaries to not compete or engage in any line of business or to not engage in its business in any geographic location, in each case other than such Contracts that may be canceled without liability to the Company or any of its Subsidiaries without notice;
(viii) any Contract providing for (x) Government Grants from the OCS or any other Israeli Governmental Authority, which Government Grant is extended to support the Company’s research and development operations (i.e., Kitvei Ishur), or (y) material Government Grants from any other Governmental Authority;
(ix) any Contract with any directors, executive officers (as such term is defined in the Exchange Act) or five-percent stockholders of the Company or any of its Affiliates or immediate family members;
(x) any Contract providing for material “earn-outs” or other material contingent payments by the Company or any of its Subsidiaries other than those with respect to which there are no further obligations under such provisions;
(xi) any Contract entered into after January 1, 2015, or has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business (or assets comprising all or part of a business) or capital stock or other equity interest of another Person;
(xii) any Contract involving a grant to any Person of any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy any material assets, rights or properties of the Company; and
(xiii) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;.
(iib) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h3.10(b) of the Company Disclosure Schedule and acquisitions or dispositions Letter contains a list of inventory in all Material Contracts (other than any Material Contract contemplated by clause (i) of the ordinary course of businessdefinition thereof) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplierAgreement, and co-packing agreements)a true, coexistence agreements accurate and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case complete copy of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company Contract has made available been provided 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.
(bc) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company , (i) each Material Contract is a valid and binding obligation of on the Company or the Subsidiary of and enforceable against the Company that is party thereto and, to the knowledge of the Company, of each other and its Subsidiaries party thereto, in accordance with its terms, except that such enforceability (x) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and is in full force and effect. There are no disputes pending or, other similar laws affecting or relating to the knowledge of the Company, threatened with respect to any Company Material Contractcreditors’ rights generally, and (y) is subject to general principles of equity, (ii) neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultnor, convenience or otherwise any Company Material Contract, nor to the knowledge Knowledge of the Company, any other party thereto, is in breach of, or default under any such party threatening to do so, in each case except as Material Contract and (iii) the Company has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given received written notice to the Company or any Subsidiary of the Company of any intention actual or potential violation of, or failure to cancelcomply with, terminate or substantially curtail its relationship with the Company or any Subsidiary term of the Company, or, to the knowledge of the Company, threatened to do any of the foregoingMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (Enzymotec Ltd.), Merger Agreement (Frutarom LTD)
Material Contracts. (a) Section 4.18(a4.12(a) of the Company Disclosure Schedule sets forth a true is an accurate and complete list, as list of the date of this Agreement, all of the following Contracts to which one or more of the Companies or the Company or any of its Subsidiaries is a party or by which (the Company or any of its Subsidiaries is bound:“Material Contracts”):
(i) Contracts evidencing Indebtedness or imposing any “material contract” Lien (as such term is defined in Item 601(b)(10other than Permitted Liens) on the assets of Regulation S-K of the SEC) a Company or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany Subsidiary;
(ii) all Company Employment Contracts that provide for annual base compensation in excess of $150,000, retention payments, severance benefits, or transaction bonuses;
(iii) all Company IP Agreements;
(iv) leases of personal property under which a Company or Company Subsidiary is the lessee and is obligated to make payments in excess of $50,000 per annum;
(v) Contracts providing for any Contract that business or equity acquisition or disposition by or relating to a Company or Company Subsidiary entered into at any time during the last four (4) years or under which a Company or Company Subsidiary has continuing or ongoing obligations;
(vi) Contracts (A) imposes any restriction on limiting the right freedom of a Company or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates Company Subsidiary to engage in any line of business business, acquire any entity or compete with any Person or in any geographic market or geographical area) or , (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains granting “most favored nation” rights status to any other Person or (C) containing any “right of first refusal,” “right of first offer” or similar rights;
(iii) preferential right to acquire any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third partyasset;
(vii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personcollective bargaining agreements;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, joint venture and co-packing limited partnership agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) Contracts for any Contract that is expected to result in the payment hedging or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016similar derivative transactions;
(x) any Contract relating to the supply of any item used distributor agreements, sales representative agreements, reseller agreements or similar agreements that provide for annual payments by the a Company or a Company Subsidiary of $100,000 or more;
(xi) Contracts for capital expenditures or the acquisition or construction of fixed assets, in any case involving future payments by a Company or Company Subsidiary in excess of $100,000 in the aggregate;
(xii) any individual Contract with a Material Customer that is a sole source requires aggregate future payments in excess of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole$100,000; and
(xixiii) any individual Contract with any Top a Material Supplier or Top Customer, other than, that requires aggregate future payments in the case excess of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts$100,000.” 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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: Equity Purchase Agreement (Esco Technologies Inc), Equity Purchase Agreement (Sonoco Products Co)
Material Contracts. (a) Section 4.18(a3.12(a) of the Company Seller Disclosure Schedule Schedules sets forth a true and complete list, list of Contracts (other than Contracts that are Excluded Assets) in effect as of the date of this Agreement, of the following Contracts hereof (i) to which the Company is a party, or (ii) to which Seller or any of its Subsidiaries Rolling Mill Affiliate (in respect to the Rolling Mill Business) is a party that relates to the Rolling Mill Business or by which the Company or any of its Subsidiaries Rolling Mill Asset is bound:, in either case which are in the categories listed below (collectively, the “Material Contracts”):
(i) any “material contract” Contract evidencing Indebtedness or under which Seller, the Company or any Rolling Mill Affiliate (as such term is defined in Item 601(b)(10) of Regulation S-K respect of the SECRolling Mill Business) has issued any note, bond, indenture, mortgage, security interest or other evidence of Indebtedness, or has directly or indirectly guaranteed Indebtedness of any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActPerson;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsKey Customer;
(iii) any collective bargaining agreementContract with a Key Supplier or any other supplier for the purchase of products or services pursuant to which Seller, labor union contract the Company or trade union agreement any Rolling Mill Affiliate (eachin respect of the Rolling Mill Business) paid at least $2,000,000 during the ten (10) month period ended October 31, a “Collective Bargaining Agreement”) or other works council agreement2020;
(iv) any agreement relating to Indebtedness of Contract under which Seller, the Company or any Rolling Mill Affiliate (in respect of its Subsidiaries having an outstanding principal the Rolling Mill Business) is or may become obligated to pay any material amount in excess respect of $10,000,000deferred or conditional purchase price (other than ordinary trade terms) or a purchase price adjustment, in each case, in connection with any (A) acquisition or disposition of all or substantially all of the assets or securities of any Person, (B) merger, consolidation or other business combination, or (C) series or group of related transactions of a type specified in subclauses (A) and (B);
(v) any Contract (including, without limitation, letters of intent) that provides for relate to the disposition or acquisition of assets or disposition of any assets properties (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) involving consideration of more than $1,000,000 in the aggregate, or relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries);
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement Contract granting a license or other similar grant of rights to any Third Party for use of any Intellectual Property related to the Rolling Mill Business and any Contract with material to the Rolling Mill Business relating to Intellectual Property, including under which a third partylicense or other grant of rights is provided to Seller, the Company or any Rolling Mill Affiliate for the use of any Intellectual Property rights or any Third Party (other than off-the-shelf, commercially available software), in each case including, without limitation, joint development Contracts, research Contracts, customer formulation Contracts, royalty Contracts or management, consulting or advisory contracts, excluding Contracts for the purchases and sales of goods and services entered into in the ordinary course of business;
(vii) any Contract that obligates involving consideration of more than $1,000,000 annually which (A) limits the ability of Seller, the Company or any Rolling Mill Affiliate (in respect of its Subsidiaries the Rolling Mill Business) to make compete in any loansmaterial respect with any Person generally or in any geographic region, advances including the expansion thereof to other geographical areas, customers, suppliers or capital contributions tolines of business, (B) limits the ability of Seller, the Company or investments in, any personRolling Mill Affiliate (in respect of the Rolling Mill Business) to solicit employees or clients or (C) that grants the other party or any third person “most favored nation” or similar status;
(viii) any Contract lease (Awhether as lessor or lessee) granting of Equipment relating to the Company Rolling Mill Business providing for annual rentals of $250,000 or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇more;
(ix) any Contract with respect to collective bargaining, any employment Contract covering a Business Employee, and any Contract with a Contingent Worker that is expected to result covers the Rolling Mill Business providing for base compensation in the payment or receipt excess of more than $30,000,000 by the Company and its Subsidiaries in 2016150,000;
(x) any Contract relating to the supply of any item used by the Company material joint venture, strategic alliance, partnership, development, joint development or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andsimilar agreement;
(xi) any Contract or other arrangements between the Company on the one hand, and Seller or any of its Affiliates on the other hand that is material to the Rolling Mill Business taken as a whole;
(xii) any Contract with third-party sales agents or representatives, brokers or distributors requiring annual payments of more than $125,000;
(xiii) any Contract relating to the leasing, subleasing or licensing of any Rolling Mill Real Property;
(xiv) any Contract granting any Person an Encumbrance on any of the Rolling Mill Assets, other than Permitted Encumbrances;
(xv) any Contracts with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(AGovernmental Authority;
(xvi) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior any Contract that relates to the date settlement of this Agreement a complete and correct copy any legal proceeding regarding amounts of each Company Material Contract as $250,000 or more in effect on the date of this Agreementdispute; and
(xvii) any factoring or similar Contract.
(b) Neither Seller has made available to Buyer true and complete copies of all Material Contracts and all amendments thereto, except for such Contracts that are listed in Section 3.12(b)(i) of the Seller Disclosure Schedules. Except as set forth in Section 3.12(b)(ii) of the Seller Disclosure Schedules, each Material Contract that (i) is valid and binding on Seller, the Company nor any Subsidiary of or the Company is in breach of or default under applicable Rolling Mill Affiliate, as the terms of any Company Material Contract case may be, and, to the knowledge Knowledge of Seller, the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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 counterparties thereto, and is in full force and effect, enforceable against Seller, the Company or such Rolling Mill Affiliate, as the case may be, and, to the Knowledge of Seller, against the counterparties thereto, in each case in accordance with its terms, except as may be limited by the General Enforceability Exceptions. There are Except as set forth in Section 3.12(b)(iii) of the Seller Disclosure Schedules, none of Seller, the Company or any Rolling Mill Affiliate is in material breach of, or default (with or without giving of notice, lapse of time or both) under any Material Contract. Except as set forth in Section 3.12(b)(iv), to the Knowledge of Seller, no disputes pending other party to any Material Contract is in material breach or default thereunder. Except as set forth in Section 3.12(b)(v), no other party to any Material Contract has (i) notified Seller, the Company or any Rolling Mill Affiliate in writing of any breach or default or that such other party intends not to renew, to cancel or to otherwise terminate such Material Contract or (ii) since September 30, 2020, taken any action or, to the knowledge Knowledge of the CompanySeller, threatened to take any action with respect to any Company Material Contractseeking a repayment of amounts paid to Seller, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the CompanyRolling Mill Affiliate, given notice as applicable, pursuant to such Material Contract or a reduction in fees or other payments that will become due to Seller, the Company or any Subsidiary of the Company of any intention such Rolling Mill Affiliate, as applicable, pursuant 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 foregoingsuch Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Alcoa Corp), Purchase Agreement (Kaiser Aluminum Corp)
Material Contracts. (a) All of the Company Contracts that are required to be described in the Company SEC Reports or to be filed as exhibits thereto are described in the Company SEC Reports or filed as exhibits thereto. Neither the Company nor any of its Subsidiaries nor, to SPX's knowledge, any other party is in breach of or in default under any Company Contract, except for such breaches and defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Section 4.18(a) 3.13 of the Company Disclosure Schedule Letter sets forth a true and complete list, as forth:
(i) any Company Contract containing any provision or covenant limiting the ability of the date Company or any of this Agreementits Subsidiaries to (a) sell any product or service of or to any other person, (b) engage in any line of business, or (c) compete with or obtain products or services from any person or limiting the following ability of any person to provide products or services to the Company or any of its Subsidiaries which limitation would, individually or in the aggregate, have a Material Adverse Effect on the Company;
(ii) any Company Contract, or group of Company Contracts with a Person (or group of affiliated Persons), the termination or breach of which would have a Material Adverse Effect on the Company;
(iii) (A) all Company Contracts with the top two providers (as measured by fees paid under such Contracts in the last fiscal year) pursuant to which the Company purchases ASICS, (B) all Company Contracts with the top five distributors of end-user products (as measured by revenues received under such Contracts in the last fiscal year) pursuant -15- to which the Company or any of its Subsidiaries is a distributes its end-user products, and (C) all Company Contracts with the top five third-party or manufacturers (as measured by fees paid under such Contracts in the last fiscal year) pursuant to which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness products of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;(or subassemblies thereof) are manufactured; and
(viv) all written Company Contracts with SPX or any Contract that provides for the acquisition or disposition of any assets its Subsidiaries (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Computer Network Technology Corp), Merger Agreement (Computer Network Technology Corp)
Material Contracts. (a) Section 4.18(a4.09(a) of the Company Disclosure Schedule sets forth a true and complete listall currently active: (i) joint venture, as of the date of this Agreementpartnership or similar Contracts entered into since April 1, of the following Contracts 2014 to which the Company or any of its Subsidiaries is a party or to which any of the Company’s or any of its Subsidiaries’ assets are subject to or bound; (ii) indemnification, employment, consulting or other Contract entered into since April 1, 2014 with any executive officer of the Company or any of its Subsidiaries other than those Contracts entered into since April 1, 2014 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 or any such Subsidiary; (iii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or promissory notes relating to the borrowing of money, extension of credit or other indebtedness for borrowed money by the Company or any of its Subsidiaries, in each case for more than $50,000 individually or $250,000 in the aggregate, entered into since April 1, 2014; (iv) any Contract entered into since April 1, 2014 pursuant to which the Company or any of its Subsidiaries received or paid in excess of $187,500 during the eight (8) months ended on November 30, 2014; (v) any Contract entered into since April 1, 2014 under which the Company or any of its Subsidiaries is bound:
(i) the lessee or sublessee of, or holds or operates any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) real property or any Contract that is personal property requiring payments of the type that would be required to be disclosed under Item 404(aat least $250,000 during any twelve (12) of Regulation S-K promulgated under the Exchange Act;
month period; (iivi) any Contract that (A) imposes any restriction on entered into since April 1, 2014 granting most favored customer pricing, exclusive sales, distribution, marketing, or other material exclusive rights, rights of first refusal or rights of first negotiation with respect to the right or ability software products of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
; (vii) any Contract that obligates entered into since April 1, 2014 required to be listed under Section 4.12(c)(i) or 4.12(c)(ii) of the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
Disclosure Schedule; and (viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in listed on Section 4.18(a)(xi)(A3.10(a) of the Company Unit Purchase Agreement Disclosure ScheduleSchedule (collectively, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither Assuming the accuracy and completeness of the representations and warranties in Section 3.10 of the Unit Purchase Agreement, neither the Company nor any Subsidiary of the Company is in material breach of or default under the terms of any Company Material Contract and, to the knowledge Knowledge of the Company, no other party to any Company Material Contract is in material breach of or default under the terms of any Company Material Contract. Except for the Bankruptcy and Equity Exception, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that which is party thereto and, (and to the knowledge Knowledge of the Company, of each other party thereto), and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (PCF 1, LLC), Merger Agreement (Neulion, Inc.)
Material Contracts. (a) All of the following Contracts (the “Material Contracts”) are listed in Section 4.18(a) 4.8 of the Company Disclosure Schedule sets forth Schedule:
(i) any commission or sales agreement with an employee, individual consultant or salesperson, or under which a true and complete listfirm or other organization provides commission or sales-based services to the Company or any of its Subsidiaries, as except for those agreements entered into in the ordinary course of business;
(ii) any fidelity or surety bond or completion bond;
(iii) any lease of personal property having aggregate outstanding ongoing obligations of the date Company or any of this Agreementits Subsidiaries in excess of $500,000;
(iv) other than standard customer contracts previously provided to Parent or that contain indemnification or guaranty provisions in favor of any person that do not impose any obligation or liability (contingent or otherwise) on the Company or any of its Subsidiaries greater than those contained in contracts previously provided to Parent, any agreement of indemnification or guaranty to any person;
(v) any agreement containing any covenant materially limiting the freedom of the following Contracts Company or any of its Subsidiaries to engage in any line of business or in any geographic territory or to compete with any person, or which grants to any person any exclusivity to any geographic territory, any customer, or any product or service;
(vi) any agreement relating to capital expenditures and involving future payments in excess of $150,000, or purchase orders (including for services) involving future payments in excess of $250,000;
(vii) any agreement relating to the disposition of assets or any interest in any business enterprise outside the ordinary course of business or any agreement relating to the acquisition of assets or any interest in any business enterprise outside the ordinary course of business;
(viii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or the extension of credit (other than security agreements for office or similar equipment where the value of the assets secured does not exceed $300,000);
(ix) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement, joint venture, partnership, strategic alliance or agreement involving the sharing of profits, losses, costs or liabilities with any person or any development, original equipment manufacturer, value added re-seller, remarketer or other agreement for distribution, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service of the Company or any of its Subsidiaries or the products or services of any other person that involved payments by the Company and its Subsidiaries of $250,000 or more in the 12 month period ended June 30, 2008;
(x) any material liability of the Company or any of its Subsidiaries pursuant to a customer contract or reseller agreement that does not limit the liability of the Company or any of its Subsidiaries to the amount of the total fees paid to the Company or any of its Subsidiaries under such contract;
(xi) any material commitment to any customer of the Company or any of its Subsidiaries or other person to develop or customize any product or service, or to customize or develop any third-party product, service or platform, in either case without compensation in an amount in excess of the cost to the Company or any of its Subsidiaries to perform such commitment, excluding contracts for hardware sold by the Company;
(xii) any agreement pursuant to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required agreed to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains provide “most favored nation” rights pricing or similar rightsother terms and conditions to any person with respect to the sale, distribution, license or support of any products or services;
(iiixiii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding except as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to disclosed in clauses (i) through (xixii) above, are referred any agreement that involved payments or receipts of more than $350,000 in the 12 month period ended December 31, 2007 or that the Company expects to herein as “involve payments or receipts of $350,000 or more; and
(xiv) any agreement, the termination or loss of which would have a 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 AgreementAdverse Effect.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of enforceable against the Company that is party thereto in accordance with its terms and, to the knowledge of the Company’s knowledge, of each other party thereto, and is in full force and effect. There are no disputes pending or, and the Company has performed all obligations required to be performed by it to the date hereof under each Material Contract and, to the knowledge of the Company’s knowledge, threatened with respect each other party to any Company each Material Contract has performed all obligations required to be performed by it under such Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, except in each case except as has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company has not received notice, nor does it have knowledge, of (i) any violation or default of any obligation under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under), or of any cancellation, termination or indication of intent to no longer perform under, any Material Contract to which it is a party or by which it or any of its properties or assets is bound, or (ii) any indication from any of its customers or resellers that any such customer or reseller no longer intends to conduct business with the Company, except in each case for such violations, defaults, conditions or terminations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Captaris Inc), Merger Agreement (Open Text Corp)
Material Contracts. (a) Section 4.18(a4.19(a) of the Company Disclosure Schedule sets forth a true an accurate and complete list, as list of the date of this Agreement, each Contract of the following Contracts nature to which the Company or any of its Subsidiaries is currently a party or by which the Company or any of its Subsidiaries is currently bound:
(i) any “material contract” (as such term is defined Contract for the purchase of materials, supplies, goods, services, equipment or other assets that resulted in Item 601(b)(10) annual payments by the Company and its Subsidiaries of Regulation S-K $500,000 or more in any of the SEC) last three years or any Contract that is expected to result in annual payments by the Company and its Subsidiaries of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act$500,000 or more in any future year;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Companysales, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) distribution or other works council agreement;
(iv) any agreement relating to Indebtedness of similar Contract providing for the sale by the Company or any of its Subsidiaries having an outstanding principal amount of materials, supplies, goods, services, equipment or other assets that resulted in excess annual payments to the Company and the Subsidiaries of $10,000,0001,000,000 or more in any of the last three years or that is expected to result in annual payments to the Company and its Subsidiaries of $1,000,000 or more in any future year;
(iii) any agency, reseller or other similar Contract providing for the payment by the Company or any of its Subsidiaries of commissions to any Person in respect of any Contract contemplated by clause (ii);
(iv) any lease or sublease (whether of real or personal property) providing for annual payments of $50,000 or more (not taking into account any free rent or similar concessions);
(v) any Contract that provides for relating to the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries);
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement joint venture or other similar Contract with a third partyContract;
(vii) any Contract that obligates limits or purports to limit the freedom of the Company or any of its Subsidiaries to make sell any loansproducts or services or to compete in any line of business or with any Person or in any area or during any period of time or which would so limit the freedom of the Company, advances Parent or capital contributions to, or investments in, any personof their respective Subsidiaries after the Closing Date;
(viii) any Contract relating to indebtedness for borrowed money or the deferred purchase price of property (A) granting the Company in either case, whether incurred, assumed, guaranteed or one of its Subsidiaries secured by any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreementsasset), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment grants any Person, including any agent, reseller or receipt partner, “most favored nation” status or any type of more than $30,000,000 by the Company and its Subsidiaries in 2016special discount rates;
(x) any Contract relating to with any director or officer of the supply Company or any of its Subsidiaries or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any item used such director or officer;
(xi) any Contract (including employment agreements and agreements that contain non-competition, non-solicitation or confidentiality covenants) applicable to any Key Employee;
(xii) any Contract pursuant to which the Company or any Subsidiary obtains any license, sublicense, right to use, covenant not to be sued, option, right of first refusal, right of first offer or other similar right with respect to any Intellectual Property Right, other than any commercial off-the-shelf software licensed by the Company or a any Subsidiary with an annual license fee of less than $500,000 in the aggregate;
(xiii) any Contract pursuant to which the Company that is a sole source or any Subsidiary grants any license, sublicense, right to use, covenant not to be sued, option, right of supply first refusal, right of first offer or other similar right with respect to any raw material, component or service Intellectual Property Right; and
(xiv) any other Contract not made in the ordinary course of business that is material to the Company and its the Subsidiaries, taken as a whole; and
whole (xi) any Contract with any Top Supplier each contract, agreement, arrangement or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) understanding of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to type described in clauses (i) through i)- (xi) abovexiii), are referred to herein as a “Company Material Contracts.” Contract”). The Company has made available to Parent prior to the date of this Agreement a an accurate and complete and correct copy of each Company Material Contract as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (NICE Ltd.), Merger Agreement (inContact, Inc.)
Material Contracts. (a) Section 4.18(a4.01(q) of the Company Disclosure Schedule sets forth a true and complete listlist of all Contracts (such Contracts, as whether listed or required to be listed, collectively, the “Company Material Contracts”) that fall within the following categories:
(i) any Contract that by its terms provides for aggregate minimum required payments by or minimum purchase requirements from the Company and/or its Subsidiaries in an amount in excess of $500,000 during any twelve (12) month period after the Agreement Date, except for any such Contract that may be canceled, without penalty or other Liability to the Company or any of its Subsidiaries, upon notice of thirty (30) calendar days or less, and except for purchase orders for the sale of Products entered into in the ordinary course of business consistent with past practice;
(ii) any Contract that grants any right of first refusal or right of first offer or that limits or purports to limit the ability of the date Company or any Subsidiary of the Company to own, operate, sell, transfer or otherwise dispose of any material amount of assets or businesses; provided, however, this subsection (ii) shall not be deemed to refer to Contracts described under Section 4.01(q)(viii) below (and Section 4.01(q)(viii) does not refer to Contracts described by this subsection (ii))
(iii) any note, bond, debenture, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement, credit agreement, indenture or other Contract for the borrowing or lending of money (including loans to or from any officer or director of the Company or any of its Subsidiaries or any member of the immediate family of any such officer or director), agreement or arrangements for a line of credit or guarantee, pledge or undertaking of indebtedness of any other Person, (A) other than lines of credit with respect to corporate credit cards and trade payables incurred in the ordinary course of business consistent with past practice and (B) except to the extent that any of the foregoing does not exceed $50,000 individually, or $150,000 in the aggregate (not including for purposes of this Agreementclause (B) any lines of credit excluded by clause (A) above);
(iv) any Contract with respect to co-promotion of, or co-development of any product or product candidate;
(v) any joint venture, partnership or other similar agreement (however named) providing for or governing the following Contracts to formation, creation, operation, management or control of any partnership, joint venture or other similar arrangement;
(vi) any Contract under which the Company or any of its Subsidiaries expressly grants any license or similar rights under any Company Intellectual Property (except for any Contract granting non-exclusive license rights for the primary purpose of (A) material transfer, sponsored research or other similar matters entered into in the ordinary course of business consistent with past practice, (B) establishing confidentiality or non-disclosure obligations, (C) conducting clinical trials or clinical and/or pre-clinical research, or (D) manufacturing, labeling or distributing the Company’s or any of its Subsidiaries’ Products for clinical trials);
(vii) any Contract under which the Company or any of its Subsidiaries is a party granted any license or by similar rights under any Intellectual Property, excluding non-exclusive licenses with respect to software that is generally commercially available;
(viii) any Contract containing covenants or conditions that in any way purport to restrict or prohibit the business activity of the Company or any Subsidiary of the Company, or limit the freedom of the Company or any Subsidiary of the Company to engage in any line of business or to compete with any Person or to sell, supply or distribute any product or service, in each case, in any location, or to restrict or prohibit the Company or any Subsidiary of the Company from hiring any individual or group of individuals; provided, however, this subsection (viii) shall not be deemed to refer to (A) any Contract under which the Company or any of its Subsidiaries is bound:
granted any license or similar rights under any Intellectual Property, (iB) any “material contract” Contract to sell or supply products or to perform services, (as such term is defined in Item 601(b)(10C) of Regulation S-K of the SECany representative, sales agency or dealer Contract, (D) any distributor Contract, or (E) any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actwith recruiting agencies for permanent or temporary placements;
(iiix) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line officer or director of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (any holder of 10% or following more of the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsoutstanding shares of Company Common Stock;
(iiix) any collective bargaining employment, consulting, retention, severance, change-of-control, non-competition, termination or indemnification Contract between the Company or any Subsidiary of the Company and any employee earning non-contingent cash compensation in excess of $150,000 per year as of the Agreement Date, other than any confidentiality agreement, labor union contract non-disclosure agreement or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementtheir foreign equivalent;
(ivxi) any agreement relating Contract with any labor union, works council or other representative of employees, including collective bargaining agreements, arrangements with works councils and work rules and practices;
(xii) any Contract to Indebtedness of sell or supply products or to perform services, involving in any one case more than $250,000 that is not terminable within 30 days without payment by the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (Subsidiaries, other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory purchase orders entered into in the ordinary course of businessbusiness consistent with past practice;
(xiii) any current Contract with a sales representative, sales agency or business dealer who earned more than $150,000 in commissions from the Company in 2010, exclusive of Contracts relating to the liability of any such representative, sales agency or dealer for Product inventory consigned to a specific customer account and any confidentiality agreements, non-disclosure agreements or their foreign equivalent; provided, however, this subsection (whether by mergerxiii) shall not be deemed to refer to Contracts with distributors of the Company’s products;
(xiv) any current Contract with a distributor (which shall not be deemed to refer to sales representatives, sale agents or dealers) involving in any one case more than $250,000 in sales of stockthe Company’s products in 2010;
(xv) any lease with respect to personal property under which the Company or any Subsidiary of the Company is either lessor or lessee, sale involving in any one case more than $250,000 per year;
(xvi) any lease with respect to real property under which the Company or any Subsidiary of assets the Company is either lessor or otherwiselessee, involving in any one case more than $150,000 per year;
(xvii) and that contains representationsany Contract for any capital expenditure, covenants, indemnities or other obligations involving in any one case more than $250,000;
(xviii) any Contract under which the Company has granted any Person registration rights (including “earnout” or demand and piggy-back registration rights), other contingent payment obligations) outstanding than Contracts relating to shares of capital stock with respect to the stock certificates evidencing which, as of the date of this Agreement Date, the applicable restrictive legend may be removed consistent with Rule 144 under the Securities Act;
(xix) any “single source” supply Contract pursuant to which goods or materials that are material to the Company’s business are supplied from an exclusive source;
(xx) any Contract (including binding letters of intent) regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise (including any such Contract that has closed but under which one or more of the parties has executory indemnification, earn-out or other Liabilities);
(xxi) any Contract with any Governmental Entity, other than purchase orders for the sale of Products entered into in the ordinary course of business consistent with past practice;
(xxii) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(viixxiii) any Contract that obligates the Company or with any of its Subsidiaries to make any loansnon-employee physician, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply tender of stock options in 2007 or 2008 and any confidentiality agreement, non-disclosure agreement or their foreign equivalent; or
(xxiv) any amendments, supplements, modifications or renewals in respect of any item used by of the foregoing. True and complete copies of all the Company Material Contracts and all amendments or a Subsidiary waivers (other than immaterial waivers and waivers which did not permanently waive any rights or obligations under any such Contracts) thereunder have been made available to Parent. Each of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Material Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company, enforceable against the Company or its Subsidiaries, and to the Subsidiary Company’s Knowledge, the other party or parties thereto, in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (regardless of whether considered in a proceeding in equity or at law). Except as set forth in Section 4.01(q)(xxv) of the Company that is party thereto andDisclosure Schedule, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened event has occurred with respect to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge any other party to a Company Material Contract, has materially violated any provision of, or taken or failed to take any action, which in any such case, with or without notice or lapse of time or both, would constitute a material breach, violation or default, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien (other than a Permitted Lien), prepayment or acceleration under any of the Company Material Contracts, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted any Company Material Contract. Except as set forth in Section 4.01(q)(xxv) of the Company Disclosure Schedule, and to the Company’s Knowledge, neither the Company nor any of its Subsidiaries has received any written notice of the intention of from any other party to any Company Material Contract Contract, and otherwise has no Knowledge, that any such party intends to terminate for defaultterminate, convenience or otherwise not to renew, any such Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 (Stryker Corp), Merger Agreement (Orthovita Inc)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any lease (A) for real property or (B) for personal property, in the case of this clause (B), providing for annual rental payments in excess of $100,000;
(ii) any Contract (A) resulting in aggregate payments by the Company and its Subsidiaries in excess of $500,000 in either calendar year 2013 or 2014 or (B) under which the Company or any of its Subsidiaries is contractually obligated to make payments in excess of $1,000,000 in the aggregate;
(iii) any Contract (A) resulting in aggregate payments to the Company and its Subsidiaries in excess of $500,000 in either calendar year 2013 or 2014 or (B) under which the Company or any of its Subsidiaries is contractually entitled to receive payments in excess of $1,000,000 in the aggregate;
(iv) any Contract relating to the disposition of any business or material assets other than the sale of products or services in the ordinary course of business consistent with past practice (whether by merger, sale of stock, sale of assets or otherwise) by the Company or any of its Subsidiaries;
(v) any Contract relating to the acquisition of any business or assets (whether by merger, sale of stock, sale of assets or otherwise), other than purchases of supplies, inventory and equipment in the ordinary course of business consistent with past practice, (A) entered into since January 1, 2011 or (B) that contains any outstanding non-competition, earn-out or other contingent payment obligations or any other outstanding material obligation of the following Company or any of its Subsidiaries;
(vi) any Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), any guarantees thereof or the granting of any Liens (other than Permitted Liens) over the property or assets of the Company or any of its Subsidiaries, other than Contracts solely among the Company and its wholly owned Subsidiaries;
(vii) any Contract for the formation of (A) any legal partnership, joint venture or similar arrangement or (B) any other partnership, joint venture, strategic alliance or similar arrangement, in the case of clause (B), that if terminated or not renewed would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, and in each case any material Contracts related thereto;
(viii) any stockholders’, investors rights’, registration rights or similar agreement or arrangement;
(ix) any Contract pursuant to which the Company or any of its Subsidiaries grants or is a party granted any material license, right or immunity (including any covenant not to ▇▇▇) with respect to any Intellectual Property (other than licenses granted to the Company or any of its Subsidiaries for commercial off-the-shelf software generally available on nondiscriminatory pricing terms and other immaterial non-exclusive licenses granted by or to the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice);
(x) any Contract with any (A) present or former officer or director of the Company or any of its Subsidiaries under which the Company has any continuing obligations, (B) beneficial owner of 5% or more of the outstanding Shares or (C) Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such officer, director, or beneficial owner;
(xi) any Contract (A) with any sole-source suppliers (i.e., suppliers for which there is no readily available alternate supplier at comparable cost) of material tangible products or services (provided that, in the case of purchase orders for reagents in the ordinary course of business consistent with past practice, only the supplier need be scheduled on Section 5.21(a)(xi)(A) of the Company Disclosure Schedule) or (B) that includes any material “most favored nations” terms and conditions (including, without limitation, with respect to pricing) or minimum purchase arrangement;
(xii) any Contract containing any provision or covenant that limits the freedom of the Company or any of its Subsidiaries (or that purports, after the Closing, to limit the freedom of the Investor or any of its Affiliates) to (A) sell any products or services of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Affiliates, other than agreements with recruiting agencies pursuant to which such agencies are granted the exclusive right to identify candidates for employment;
(xiii) any Contract pursuant to which the Company or any of its Subsidiaries is bound:has continuing obligations or interests involving (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in excess of $1,000,000 in the aggregate, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or any of its Subsidiaries, in each case that cannot be terminated by the Company or its Subsidiaries without payment or penalty without more than 60 days’ notice;
(ixiv) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or other than any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;Employee Plan; or
(iixv) any other Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory not made in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its the Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) . All Contracts of the Company Disclosure Schedule, Contracts that, type described in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (ithis Section 5.21(a) through (xi) above, are referred to herein as “Company Material Contracts” (which term, for the avoidance of doubt, includes any Contract that would be a Material Contract if it had been entered into as of the date hereof).”
(b) The Company has made available to Parent prior to the date of this Agreement made available to the Investor a true and complete and correct copy of each Company Material Contract as in effect entered into on or prior to the date of this Agreement.
hereof (b) Neither the Company nor any Subsidiary of the Company is in breach of including all amendments, modifications, extensions and renewals thereto and waivers thereunder). Except for breaches, violations or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company , (i) each Material Contract is a valid valid, binding and binding obligation of the Company or the Subsidiary of the Company that is party thereto in full force and effect and, to the knowledge of Company’s knowledge, enforceable against the Company, of each other party theretoor parties thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity), and is in full force neither the Company nor any of its Subsidiaries have waived or failed to enforce any rights or benefits under any Material Contract, and effect. There are no disputes pending or(ii) neither the Company nor any of its Subsidiaries, nor, to the knowledge Company’s knowledge, any other party to a Material Contract, has breached or violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the Companyprovisions of such Material Contract, threatened with respect or would give to any Company Third Party any right of termination, amendment or cancellation of any Material ContractContract or any license thereunder, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of that it has breached, violated or defaulted under any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 The CDX Contract does not (i) conflict with or otherwise limit any rights granted or contemplated to be granted to the date hereofInvestor or any of its Affiliates under any of the Collaboration Agreements, no Top Supplier (ii) impose or Top Customer has canceledpurport to impose any obligation or restriction on the Investor or any of its Affiliates (including any of the restrictions described in clause (iv) of this Section 5.21(c)), terminated (iii) encumber or substantially curtailed purport to encumber any Intellectual Property of the Investor or any of its relationship with Affiliates, or (iv) except as set forth on Section 5.21(a)(xii) of the Company Disclosure Schedule, limit the freedom of the Company or any Subsidiary of its Subsidiaries to (A) sell any products or services of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or obtain products or services from any Person or limit the Company, given notice ability of any Person to provide products or services 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 foregoingAffiliates.
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement (Foundation Medicine, Inc.)
Material Contracts. (a) Section 4.18(aExcept as set forth in Schedule 3.16(a) of the Company Disclosure Schedule sets forth a true and complete listLetter, as of the date of this Agreement, of the following Contracts to which neither the Company or nor any of its Subsidiaries is a party to or is bound by which the Company or any of its Subsidiaries is bound:the following Contracts (collectively, the "Material Contracts"):
(i) Contracts with any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K current or former director or officer of the SECCompany other than (A) Contracts with former directors or officers that are no longer in effect, (B) Contracts pursuant to any Contract that is Company Benefit Plan or similar arrangement listed in Section 3.11 or in Schedule 3.11 of the type that would be required to be disclosed under Item 404(aCompany Disclosure Letter, and (C) Contracts entered into in the ordinary course of Regulation S-K promulgated under the Exchange Actbusiness consistent with past practice;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount Contracts involving amounts in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule 3,000,000 and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants which cannot to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used be cancelled by the Company or a Subsidiary of the Company that is within 90 days following notice thereof without the payment of a sole source of supply material penalty (A) for the sale of any raw materialof the assets of the Company or any of its Subsidiaries, component other than contracts entered into in the ordinary course of business, consistent with past practice, or service that is (B) for the grant to any person of any preferential rights to purchase any of its assets;
(iii) Any non-competition agreements or other Contracts which restrict the Company or any of its Subsidiaries from competing in any line of business or with any person in any geographical area in any material to manner; or otherwise limit in any material respect the manner in which or localities in which the Company and its Subsidiaries conduct their businesses ("Non-Competition Contracts");
(iv) Any Contract that requires the Company to conduct business exclusively with one or more Persons in any particular geographic area or with respect to any particular product or service and that cannot be canceled by the Company within 90 days following notice thereof without the payment of a material penalty ("Exclusivity Contracts");
(v) Indentures, credit agreements, security agreements, mortgages, guarantees and promissory notes, and other Contracts relating to the borrowing of money or the lending of money by the Company or any of its Subsidiaries involving amounts in excess of $3,000,000 ("Loan Contracts");
(vi) Contracts between the Company or any of its Subsidiaries, taken on the one hand, and any holder of more than 5% of the Company's equity securities, on the other hand, including United and SAir Group Ltd. ("SAirGroup") or any affiliate thereof;
(vii) Agreements involving the provision of services by the Company involving annual amounts in excess of $3,000,000 and that cannot be canceled by the Company within 90 days following notice thereof without the payment of a material penalty;
(viii) Partnership, joint venture and similar agreements ("Partnership Contracts");
(ix) Bonds or agreements of guarantee or indemnification in which the Company or any Subsidiary of the Company acts as surety, guarantor or indemnitor with respect to any obligation (fixed or contingent) in excess of $3,000,000 and that cannot be terminated by the Company or such Subsidiary of the Company within 90 days following notice thereof without the payment of a wholematerial penalty, other than any of the foregoing relating to obligations of the Company or any Subsidiary of the Company ("Guarantees");
(x) Any Contract (other than (A) Contracts pursuant to any Company Benefit Plan or similar arrangement listed in Section 3.11 or in Schedule 3.11 of the Company Disclosure Letter or (B) Contracts with former directors, officers or employees of the Company or any of its Subsidiaries that are no longer in effect) providing for future payments in excess of $3,000,000 that are conditioned, in whole or in part, on a change in control of the Company or any of its Subsidiaries ("Change in Control Contracts");
(xi) Any nondisclosure, confidentiality or standstill agreements with any Person (excluding nondisclosure agreements with any Person entered into in the ordinary course of business consistent with past practice) ("Confidentiality Contracts"); provided, however, that any such agreement that was entered into in connection with the strategic evaluation process that led to the execution of this Agreement shall be provided in form only, with a schedule of material changes or modifications to such form agreed to by the Company;
(xii) Any Contracts having a value in excess of $3,000,000 and (A) that grant or obtain any right to use or practice any Material Intellectual Property Rights or (B) restricting the Company's or any of its Subsidiaries' right to use any Material Intellectual Property Rights;
(xiii) Any lease or sublease pursuant to which the Company and its Subsidiaries leases or subleases material facilities ("Leases"); and
(xixiv) Any Contract that cannot be cancelled by the Company within 90 days following notice thereof without the payment of a material penalty and that obligates the Company to make any Contract with annual payments to any Top Supplier person, including for the purchase of goods or Top Customer, other thanservices, in the case excess of each Top Supplier and each Top Customers identified $3,000,000 ("Miscellaneous Contracts").
(b) Except as set forth in Section 4.18(a)(xi)(ASchedule 3.16 (b) of the Company Disclosure ScheduleLetter, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts all of the types referred Material Contracts are in full force and effect and are the legal, valid and binding obligations of the Company and/or its Subsidiaries, enforceable against them in accordance with their respective terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws, now or hereafter in clauses effect, affecting creditors' rights and remedies generally and to general principles of equity (i) through (xi) above, are referred to herein regardless of whether enforcement is sought in proceeding at law or in equity). Except 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 set forth in effect on the date of this Agreement.
Schedule 3.16 (b) Neither of the Company Disclosure Letter, neither the Company nor any Subsidiary of the Company its Subsidiaries is in breach of or default under the terms of any Company Material Contract andnor, to the knowledge of the Company, no is any other party to any Company Material Contract is in breach of thereof or default under the terms of any Company Material Contractthereunder, in any material respect. 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 Contractexcept, in each case except as has case, for such breaches or defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect.
(c) Since January 1Except as set forth on Schedule 3.16(c), 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or has not received written notice from any Subsidiary of the Company, given notice to persons listed on Schedule 3.16(c) under the Company or any Subsidiary heading "Section 3.16(c) Persons" of the Company Disclosure Letter terminating, or threatening to terminate any of any intention to cancel, terminate or substantially curtail its relationship with Material Contracts listed in Schedule 3.16(a) of the Company Disclosure Letter or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoingbusiness relationship arising therefrom.
Appears in 1 contract
Sources: Merger Agreement (Cendant Corp)
Material Contracts. Schedule 2.21 of the Company Disclosure Schedules lists:
(a) Section 4.18(aAll loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any Indebtedness (as defined below) of the Company Disclosure Schedule sets forth or any Subsidiary in a true principal amount in excess of $10,000 is outstanding or may be incurred, indicating (i) with respect to any term or fixed loans, the respective principal amounts outstanding thereunder, and complete list, as (ii) whether such Indebtedness is prepayable and any applicable prepayment or similar penalties.
(b) All agreements of the date Company, any Subsidiary or any Trust currently in effect and involving annual payments in excess of this Agreement, $25,000 or aggregate payments in excess of the following Contracts $75,000.
(c) All agreements ("Acquisition Agreements") pursuant to which the Company or any Subsidiary, in the last five years, has acquired, or agreed to acquire, all or a substantial portion of its Subsidiaries is a party the assets of or by equity interests in any corporation, partnership or other entity or any Subsidiary, division or business thereof).
(d) All agreements pursuant to which the Company or any Subsidiary, in the last five years, has merged with or into, or agreed to merge with or into, an other person excluding mergers between or among the Company and any of its Subsidiaries is bound:direct or indirect wholly-owned Subsidiaries.
(e) All agreements pursuant to which the Company or any Subsidiary, in the last five years, has disposed of, or agreed to dispose of, any business or Subsidiary or all or a substantial portion of the assets of any business or Subsidiary.
(f) All current commitments of the Company or any Subsidiary for capital expenditures in excess of $25,000.
(g) All agreements of the Company or any Subsidiary containing an unexpired covenant not to compete or similar restriction applying to the Company or any Subsidiary or affiliate or, to the Company's knowledge, any of their respective officers or directors (other than covenants of such officers or directors not to compete with the Company or any Subsidiary).
(h) All contracts, agreements or arrangements currently in effect with current holders of equity interests in any Subsidiary.
(i) All agreements or arrangements to which the Company or any “material contract” Subsidiary is a party containing provisions that are currently in effect for the escrow of any assets (as such term is defined in Item 601(b)(10including, without limitation, cash or securities) of Regulation S-K the Company or any Subsidiary or any other person.
(j) Any contracts or agreements (other than as listed in Schedule 2.16 of the SECCompany Disclosure Schedules) relating to exploration, production, transportation and treatment of hydrocarbons, including without limitation the Statex Contracts, involving the annual payment to or by the Company or any Contract Subsidiary in excess of $10,000, or the creation of joint ventures for such purposes, or that are otherwise material to the ownership or operation of the Statex Leases and Statex ▇▇▇▇▇ and the production of hydrocarbons therefrom.
(k) Any farmins, farmouts or similar agreements containing provisions currently in effect for the acquisition, sale or disposition of any interest in a property.
(l) Any contracts containing provisions currently in effect for the sale, exchange, transfer or other disposition of hydrocarbons produced from or attributable to the Statex Lands, Statex Leases or Statex ▇▇▇▇▇ for a period of three months or more.
(m) Any agreements or arrangements containing provisions currently in effect relating to the release or disposal of Hazardous Materials.
(n) Any contracts (other than contracts identified in clause (l) above) containing calls on production or rights to purchase or otherwise take production in favor of a third party. Except as set forth in Schedule 2.21 of the Company Disclosure Schedules under the heading "Contingent Payments", the Company has no undischarged obligations for the payment of any deferred consideration pursuant to any Acquisition Agreement, or any undischarged obligations to make any payment to any third party that is contingent upon the financial performance of the type Company or any Subsidiary.
(o) Any other contract or amendment thereto that would be required to be disclosed under Item 404(a) of Regulation Sfiled as an exhibit to a Form 10-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates filed by the Company or its Subsidiaries (or following with the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding SEC as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses and has not been so filed. Except as set forth in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) Schedule 2.21 of the Company Disclosure ScheduleSchedules, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts each of the types referred to agreements listed in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary Schedule 2.21 of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract Disclosure Schedules is a valid and binding obligation of the Company or a Subsidiary, as the Subsidiary of the Company that is party thereto case may be, and, to the knowledge of the Company's knowledge, of each other party thereto, and each such agreement is in full force and effecteffect in all material respects and is enforceable by the Company or any Subsidiary in accordance with its terms, subject to (1) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws now or hereafter in effect relating to creditors' rights generally and (2) general principles of equity (regardless of whether considered in a proceeding at law or in equity). There Except as set forth in Schedule 2.21 of the Company Disclosure Schedules, there are no disputes pending orexisting defaults (or circumstances or events that, with the giving of notice or lapse of time or both, would become defaults) and, to the knowledge of the CompanyCompany and any Subsidiary, threatened with respect no person has given or threatened, in writing, to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written give notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 under any of the foregoingagreements listed in Schedule 2.21, other than immaterial defaults.
Appears in 1 contract
Material Contracts. (a) Except for this Agreement, Section 4.18(a3.17(a) of the Company Disclosure Schedule sets forth Letter contains a true complete and complete correct list, as of the date of this Agreementhereof, of each Contract described below in this Section 3.17(a) under which the following Contracts Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any of its Subsidiaries Company Subsidiary is a party or by to which any of their respective properties or assets is subject, in each case as of the date hereof other than Company Benefit Plans listed on Section 3.10(a) of the Company Disclosure Letter (all Contracts of the type described in this Section 3.17(a), excluding non-disclosure agreements entered into in the ordinary course of business consistent with past practice for commercial arrangements, purchase or any service orders, statements of its Subsidiaries is bound:work, quotations and sales acknowledgements and other similar documents, and whether or not set forth on Section 3.17(a) of the Company Disclosure Letter, being referred to herein as the “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any each Contract that is of limits in any material respect the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability freedom of the Company, any of its Subsidiaries Company Subsidiary or any Affiliate of any of them their respective affiliates (including Parent and its affiliates after the Effective Time) to compete with any other person or engage in any line of business or geographic region (or with any Person or sell, supply or distribute any product or service or that following otherwise has the effect of restricting the Company, the Company Subsidiaries or any of their respective affiliates (including Parent and its affiliates after the Effective Time will restrict Time) from the ability development, marketing or distribution of Parent or its Affiliates to engage products and services, in any line of business or compete each case, in any geographic area;
(ii) each Contract that limits in any material respect the freedom of the Company, any Company Subsidiary or (B) obligates any of their respective affiliates to negotiate or, except for provisions requiring notice or consent to assignment or change of control by the Company or its Subsidiaries (or following counterparty thereto, consummate any of the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsTransactions;
(iii) any collective bargaining agreementmaterial partnership, labor union contract or trade union joint venture, limited liability company agreement (each, a “Collective Bargaining Agreement”other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or other works council agreement;similar material Contract;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the each acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of that would reasonably be expected to result in the date of this Agreement that are material to receipt or making by the Company or any Company Subsidiary of its Subsidiariesfuture payments in excess of $5,000,000;
(v) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase Company Products) after the date hereof with consideration of more than $5,000,000;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar each Contract with a third partyof the type described in clauses (i) and (ii) of Section 3.14(i);
(vii) any Contract to put Source Code for any Company Product in escrow with a third Person on behalf of a licensee or contracting party, and any other Contract to provide Source Code for any Company Product to any third Person (other than an employee, contractor, agent or representative of the Company or a Company Subsidiary in the ordinary course of business consistent with past practice);
(viii) any settlement agreement or similar Contract restricting in any respect the operations or conduct of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Effective Time);
(ix) each Contract not otherwise described in any other subsection of this Section 3.17(a) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $10,000,000 in the twelve (12)-month period following the date hereof;
(x) any Contract that obligates the Company or any of its Subsidiaries Company Subsidiary to make any loans, advances capital investment or capital contributions to, or investments in, any personexpenditure outside the ordinary course of business and in excess of $10,000,000;
(viiixi) each Contract that is a Material Customer Agreement, a Material Supplier Agreement or a Material Reseller Agreement;
(xii) each Contract that grants any right of first refusal or right of first offer or that limits in any material respect the ability of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or material assets;
(xiii) each Contract (A) granting that contains any exclusivity rights or material “most favored nations” provisions or minimum use, supply or display requirements that are binding on the Company or one of its Subsidiaries any right to use any material Intellectual Property affiliates (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, Parent and co-packing agreementsits affiliates after the Effective Time), coexistence agreements and covenants not to ▇▇▇;
(ixxiv) any each Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) contains any Contract relating to the supply of any item used material indemnification obligations by the Company or a Subsidiary any Company Subsidiary, other than those Contracts entered into in the ordinary course of business consistent with past practice;
(xv) each Company Government Contract not otherwise described in any other subsection of this Section 3.17(a) pursuant to which the Company receives annual revenue in excess of $3,000,000;
(xvi) each Company Lease;
(xvii) each Contract relating to outstanding or potential Indebtedness (or commitments in respect thereof) of the Company that is a sole source or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of supply $2,500,000 or relating to any Liens on the assets of the Company or any raw materialCompany Subsidiary;
(xviii) each Contract governing or amending, component modifying, supplementing or service that is material otherwise relating to any of the Convertible Notes, any Convertible Notes Indenture or any of the Convertible Notes Hedge Obligations;
(xix) each Contract not otherwise described in any other subsection of this Section 3.17(a) involving other derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward contracts and option agreements) for which the aggregate exposure (or aggregate value) to the Company and its Subsidiaries, taken as the Company Subsidiaries is reasonably expected to be in excess of $10,000,000 or with a wholenotional value in excess of $10,000,000; and
(xixx) each Contract not otherwise described in any Contract with any Top Supplier or Top Customer, other than, subsection of this Section 3.17(a) that would be required to be filed as an exhibit on the Company’s Form 20-F as a “material contract” (as such term is defined in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(AItem 601(b)(10) of Regulation S-K under the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (iExchange Act) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior with respect to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this AgreementCompany.
(b) Neither True and complete copies of each Material Contract in effect as of the Company nor any Subsidiary date hereof have been made available to Parent or publicly filed with the SEC prior to the date hereof. None of the Company or any Company Subsidiary is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of To the Company’s Knowledge, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Material Contract is in breach of or default under the terms of any Material Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is a valid, binding and enforceable obligation of the Company or the Company Subsidiary which is party thereto and, to the Company’s Knowledge, of each other party thereto, and is in full force and effect, subject to the Enforceability Limitations.
(c) Since January 1True and complete copies of each Government Contract Bid that, 2016 if accepted, would be a Material Contract of the type specified in Section 3.17(a)(xv) (a “Material Government Bid”) have been made available to Parent prior to the date hereof.
(d) The Company and the Company Subsidiaries have not delivered or granted, agreed to deliver or grant, or entered into any Company Government Contract that requires the delivery or granting to any Governmental Entity, prime contractor or subcontractor of (i) any Source Code for any Company Product, (ii) unlimited or government purpose rights (as defined in FAR Section 52.227-14, DFARS Section 252.227-7013 or 252.227-7014 or similar clauses in the Company Products or material Company Intellectual Property or any portion thereof in which the Company could have legally asserted more restrictive rights under applicable Laws or Contract clauses, or (iii) ownership of or exclusive rights to any portion of Company Products or material Company Intellectual Property. The Company and each Company Subsidiary has taken reasonable steps under Company Government Contracts and applicable Law to assert, protect and support its ownership of and rights in Company Products and material Company Intellectual Property, so that no Top Supplier more than the minimum rights or Top Customer has canceledlicenses required under applicable Laws and the terms of such Company Government Contracts have been provided to the applicable Governmental Entity and/or counterparty to such Company Government Contract. To the Knowledge of the Company, terminated the terms of the Company Government Contracts do not restrict the Company’s or substantially curtailed its relationship with any Company Subsidiary’s use, licensing, transfer or export, of any Company Products or technology or Intellectual Property developed or otherwise created by or on behalf of the Company or any Company Subsidiary pursuant to any Company Government Contract, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole.
(e) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, (i) each Company Government Contract is binding on the Company or the Company Subsidiary party thereto and is in full force and effect, subject to the Enforceability Limitations, (ii) no Company Government Contract or offer, quotation, bid or proposal to sell products or services made by the Company or any Company Subsidiary to any Governmental Entity or any prime contractor (a “Government Contract Bid”) is the subject of bid or award protest proceedings resulting from the conduct of the CompanyCompany or any of its Subsidiaries, given notice and (iii) neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Government Contract. The Company and the Company Subsidiaries are in compliance, and have been in compliance since January 1, 2022, in all material respects with the terms and conditions of each Company Government Contract and Government Contract Bid, including clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein. Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2022, neither any Governmental Entity nor any prime contractor or subcontractor has notified the Company or any Company Subsidiary in writing that the Company or any Company Subsidiary has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Company Government Contract or Government Contract Bid. Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2022, no material payment due to the Company or any Company Subsidiary pertaining to any Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off any such payment, and to the Company’s Knowledge, there is no basis for a price adjustment, refund or demand for payment under any such Company Government Contract. To the Knowledge of the Company, neither the Company nor any Company Subsidiary holds any facility security clearance, nor do any employees of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company Subsidiaries hold any personnel security clearances obtained in connection with the operations of the Company and the Company Subsidiaries. None of the Company Government Contracts require a facility security clearance or personnel clearances.
(f) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2022, (i) none of the Company, any Company Subsidiary or any of their respective Principals (as defined in Federal Acquisition Regulation 52.209-5) has been debarred, suspended or excluded, or to the Company’s Knowledge, proposed for debarment, suspension or exclusion, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity or doing business with any Governmental Entity, (ii) none of the Company or any Company Subsidiary has received any request to show cause (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements), (iii) none of the Company or any Company Subsidiary, to the Company’s Knowledge, is the subject of a finding of nonresponsibility or ineligibility for government contracting, (iv) none of the Company or any Company Subsidiary is for any reason listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, (v) neither the Company nor any Company Subsidiary, nor to the Company’s Knowledge any of their respective Principals (as defined in Federal Acquisition Regulation 52.209-5) is or has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity with respect to the award or performance of any Company Government Contract, the subject of any actual or, to the knowledge Company’s Knowledge, threatened in writing, “whistleblower” or “qui tam” lawsuit, or audit (other than a routine contract audit) or investigation of the Company or any Company Subsidiary with respect to any Company Government Contract, including any alleged material irregularity, misstatement or omission arising thereunder or relating thereto, and to the Company’s Knowledge, threatened there is no basis for any such investigation, indictment, lawsuit or audit and (vi) neither the Company nor any Company Subsidiary has made any disclosure (A) to do any Governmental Entity with respect to any alleged material irregularity, misstatement, omission, fraud or price mischarging, or other violation of Law, arising under or relating to a Company Government Contract or (B) under the foregoingFederal Acquisition Regulation mandatory disclosure provisions to any Governmental Entity and, to the Company’s Knowledge, there are no facts that would require mandatory disclosure thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.18(a4.20(a) of the Company Disclosure Schedule sets forth a true and complete list, list as of the date of this Agreement, Agreement of each of the following Contracts (other than Company Employee Plans and such Contracts solely among the Company and any of its wholly owned Subsidiaries) to which the Company or any of its Subsidiaries is a party or by which it is bound (each such Contract listed or required to be so listed, and each of the following Contracts to which the Company or any of its Subsidiaries is bound:becomes a party or by which it becomes bound after the date of this Agreement, a “Company Material Contract”):
(i) any “material contract” Contract pursuant to which the Company or any of its Subsidiaries incurred payment obligations or received payments in excess of $25,000,000 during the twelve (as such 12) month period ended December 31, 2019, or is expected to incur payment obligations or receive payments in excess of (A) $25,000,000 during any twelve (12) month period ending after December 31, 2019 or (B) $25,000,000 over the remaining term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActContract;
(ii) any Contract that (A) imposes any restriction on that, to the right or ability knowledge of the Company, any of its Subsidiaries (A) limits or any Affiliate of any of them purports to compete with any other person limit, in any line of business or geographic region (or that following material respect, the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness freedom of the Company or any of its Subsidiaries having an outstanding principal amount to engage or compete in excess any line of $10,000,000business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time, (B) contains any material exclusivity or material “most favored nation” obligations, material rights of first refusal, material rights of first offer, material put or call rights or other restrictions or similar provisions that are binding on the Company or any of its Subsidiaries (or, after the Effective Time, that would be binding on Parent or any of its Affiliates) or (C) otherwise limits or restricts, in any material respect, the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Affiliates) from hiring or soliciting any Person for employment;
(iii) any material deposit sweep agreement or similar agreement;
(iv) (A) any standard form Contract pursuant to which the Company or any of its Subsidiaries provides material Brokerage Services or material Investment Advisory Services to any Client and (B) any material Contract (or group of Contracts that, in the aggregate, are material) pursuant to which the Company or any of its Subsidiaries provides Brokerage Services or Investment Advisory Services to any Client that is not on any such standard form or includes any material deviations from any such standard form;
(v) any Contract reasonably expected to result in payments made or received by the Company and its Subsidiaries in excess of $25,000,000 in any year that provides for the acquisition any referral arrangement, commission-sharing arrangement or disposition of co-marketing arrangement, including, any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions finder’s agreement for soliciting, distributing or dispositions of inventory in the ordinary course of business) promoting Investment Advisory Services or business (whether Brokerage Services by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venturematerial Contract for which the execution, partnership, limited liability company delivery and performance by the Company of this Agreement or strategic alliance agreement the consummation of any of the Transactions would (A) require any consent or other similar Contract action (including notice by the Company) thereunder, (B) constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a third party;
default, thereunder, (viiC) cause or permit the termination, cancellation, acceleration or other change of any Contract that obligates material right or obligation (including triggering of a price adjustment, right of renegotiation or other remedy) or the loss of any material benefit to which the Company or any of its Subsidiaries is entitled thereunder or (D) require any material payment by the Company or any of its Subsidiaries thereunder;
(vii) promissory notes, loan agreements, indentures, evidences of indebtedness or other instruments providing for or relating to make any loansthe lending of money, advances (A) if as borrower or capital contributions toguarantor, in excess of $15,000,000, and (B) if as lender, in excess of $15,000,000, other than under Regulation U, Regulation T or investments in, any personthe Community Reinvestment Act of 1977;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇Collective Bargaining Agreements;
(ix) any Contract that is expected to result in the payment material joint venture, profit-sharing, partnership, stockholders, investors rights, registration rights or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016similar Contract;
(x) any Contract Contracts or series of related Contracts entered into within the last three (3) years relating to the supply acquisition or disposition of the business, assets or securities of any item used Person or any business for a price in excess of $200,000,000 (in each case, whether by the Company merger, sale of stock, sale of assets or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andotherwise);
(xi) any Contract Contracts or other transactions with any Top Supplier (A) executive officer or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge director of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction (B) record or, to the knowledge of the Company, through the action beneficial owner of five percent (5%) 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation more of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge voting securities of the Company, or (C) affiliates or “associates” (or members of each other party thereto, any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and is in full force and effect. There are no disputes pending or, to the knowledge Rule 16a-1 of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention Securities Exchange Act) of any other party to any Company Material Contract to terminate for defaultsuch executive officer, convenience director or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in beneficial owner (each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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., a “Related Party” and each such Contract, a “Related Party Contract”); and
(xii) any other Contract required to be filed by the Company pursuant to Item 601(b)(10) of Regulation S-K.
Appears in 1 contract
Sources: Merger Agreement (Morgan Stanley)
Material Contracts. (a) Section 4.18(aSchedule 3.11(a) of the Company Disclosure Schedule sets forth a true and complete list, list of the following types of Contracts to which Company or Intermediate Parent is a party as of the date of this Agreementhereof (collectively, of the following Contracts “Material Contracts”) that relate to which the Company Business or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is boundPurchased Assets:
(i) any “material contract” Any single Contract or series of related or unrelated Contracts (as such term is defined in Item 601(b)(10) of Regulation S-K other than unfulfilled commitments, quotations, purchase orders, customer orders or work orders that constitute part of the SECPurchased Assets issued by the Business’ customers to and accepted by Company or Intermediate Parent on or before the Closing) between the Company, on one hand, and the same third party, on the other hand, that contemplates or any Contract that is might reasonably be expected to involve in the twelve (12) months following the Closing Date, (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the type that would be required to be disclosed under Item 404(aaggregate, or (B) the performance of Regulation S-K promulgated under services or delivery of goods having a value in excess of $100,000 in the Exchange Actaggregate;
(ii) any Contract that (A) imposes any restriction on relates to the right or ability of the Company, any of its Subsidiaries or any Affiliate sale of any of them to compete with any Company’s assets, other person than in any line the ordinary course of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsbusiness;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (eachContract that relates to Company’s acquisition of any business, a “Collective Bargaining Agreement”) material amount of stock or assets of any other works council agreement;
(iv) any agreement relating to Indebtedness of the Company Person or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) and that contains representationsany Contract creating or involving any agency relationship, covenants, indemnities distribution arrangement or other obligations franchise relationship;
(including “earnout” v) any Contract creating or other contingent payment obligations) outstanding as of the date of this Agreement that are material relating to the Company any partnership or joint venture or any sharing of its Subsidiariesrevenues, profits, losses, costs or Liabilities;
(vi) any joint ventureContract that limits or purports to limit, partnershipin any material respect, limited liability company the ability of Company to compete in any line of business or strategic alliance agreement with any Person or other similar Contract with a third partyin any geographic area or during any period of time;
(vii) any Contract providing for indemnification by Company, except for any such Contract that obligates was (A) entered into in the Company or any ordinary course of its Subsidiaries to make any loans, advances or capital contributions tobusiness, or investments in, (B) entered into in connection with the purchase or sale of any personentity or business and is otherwise disclosed under this Section 3.11;
(viii) any Contracts related to any Indebtedness for borrowed money of Company, or to the mortgaging or pledging of, or otherwise placing an Encumbrance on the Purchased Assets; any Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(A) granting any agreement relating to the Company employment, consulting or one other service relationship of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect employee, consultant or independent contractor of commercially available software) or the Company, and (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract agreement entered into under a Benefit Plan that is expected to result in a severance, bonus, or similar Contract with any employee, consultant or independent contractor of the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016Company;
(x) any collective bargaining agreement or other Contract relating (including but not limited to the supply any memoranda of any item used by the Company understanding or letters of agreement) with a Subsidiary of the Company that is a sole source of supply of any raw material, component labor union or service that is material to the Company and its Subsidiaries, taken as a whole; andorganization;
(xi) any Contract with providing for the payment of any Top Supplier cash or Top Customer, other than, in compensation or benefits upon the case sale of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) all or a material portion of the Purchased Assets or the Business or a change of control of Company;
(xii) any Contract under which the Company Disclosure Scheduleis lessee of or holds or operates any personal property owned by any other Person, which involves annual rental payments of greater than $50,000 or group of such Contracts that, with the same Person which involve consideration in excess of $50,000 in the aggregate;
(xiii) any material broker, do not represent purchases distributor, dealer, manufacturer’s representative, agency, marketing and advertising Contracts;
(xiv) any Contract relating to the acquisition, transfer, use, development, sharing or sales, respectively, constituting a majority license or grant of purchases from such Top Supplier any other right of any Intellectual Property including any Intellectual Property License other than (A) any Contract under which commercially available “off-the-shelf” software is licensed or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior the Company pursuant to standard commercial terms for a fee of less than $35,000 per year, and (B) any non-exclusive license that is merely incidental to the date transaction contemplated in the Contract in which such license is granted, the commercial purpose of this Agreement a complete and correct copy of each Company Material which is for something unrelated to Intellectual Property;
(xv) any Contract as in effect imposing any restriction on the date Company’s right or ability (A) to compete with any other Person, (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 products or services;
(xvi) any Contract relating to any Legal Proceeding or Order;
(xvii) any Contract with a Governmental Entity;
(xviii) any Contracts that require Company to purchase or sell any product or service to or from a third party that contain “take or pay” provisions;
(xix) any Contracts between or among Company, on the one hand, and Intermediate Parent or any Affiliate of Intermediate Parent (other than the Company) on the other hand and any Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party;
(xx) any Contract entered into outside the ordinary course of business not previously disclosed pursuant to this AgreementSection 3.11(a);
(xxi) any Contract with manufacturer representatives or others entitled to sales commissions related solely to the Company products or Business (but not the products or business of Company Affiliates); and
(xxii) any other Contract deemed material by Company to the conduct of its Business and/or the ownership or operation of the Purchased Assets and not previously disclosed pursuant to this Section 3.11(a).
(b) Neither Company nor, to the Company nor Knowledge of Company, any Subsidiary of the Company other party, is in breach in, or, has received written notice of, any breach, violation of or default under the terms any Material Contract. A copy of any Company each Material Contract and, has previously been made available to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectPurchaser. Each Company Material Contract is a legal, valid and binding obligation agreement 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. There are no disputes pending or, and is enforceable against Company and, to the knowledge Knowledge of Company, each other party thereto, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity). (i) The Company has not, and to the Knowledge of Company no other Person has, violated or breached, or declared or committed any default under, any Material Contract; (ii) no event has occurred, and, the Knowledge of Company, no circumstance or condition exists (including the execution of this Agreement and the consummation of the Companytransactions contemplated hereby), threatened that might (with respect to or without notice or lapse of time) (A) result in a violation or breach of any Company of the provisions of any Material Contract, and neither (B) give any Person the Company nor right to declare a default or exercise any of its Subsidiaries has received remedy under any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor (C) give any Person the right to accelerate the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually maturity or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 performance of any intention Material Contract, or (D) give any Person the right to cancel, terminate or substantially curtail its relationship with modify any Material Contract; (iii) the Company has not received any notice or other communication (in writing or otherwise) regarding any Subsidiary violation or breach of, or default under, any Material Contract; and (iv) the Company has not waived any right expressly provided for any Material Contract. The Purchaser has been provided with a true, correct and complete copy of the Companyall Material Contracts, ortogether with all supplements, to the knowledge of the Companyamendments, threatened to do any of the foregoingwaivers or other changes thereto.
Appears in 1 contract
Material Contracts. (a) Section 4.18(a3.19(a) of the Company Disclosure Schedule sets forth a true and complete listlists, as of the date of this Agreementhereof, each of the following Contracts to which of the Companies and the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:(such Contracts being “Material Contracts”):
(i) any “material contract” (as such term is defined all Contracts for the purchase by a Company or a Company Subsidiary of equipment, materials, products, supplies or services that involved payments in Item 601(b)(10) excess of Regulation S-K of $350,000 in the SEC) or any Contract that is of aggregate during the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actyear ended December 31, 2013;
(ii) all Contracts with a customer of a Company or a Company Subsidiary that generated revenues of more than $2.5 million during the year ended December 31, 2013;
(iii) all Contracts with independent contractors or consultants (or similar arrangements) involving payments by a Company or a Company Subsidiary in excess of $100,000 in the aggregate during the year ended December 31, 2013;
(iv) all Contracts relating to Indebtedness (other than to a Company or Company Subsidiary);
(v) all Contracts pursuant to which any Contract Company or Company Subsidiary has made any loan, capital contribution or other debt or equity investment in any Person (other than a Company or Company Subsidiary);
(vi) all Contracts with any Governmental Authority;
(vii) all Contracts that (A) imposes any restriction on materially limit the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them the Companies or the Company Subsidiaries to compete with any other person in any line of business or geographic region (with any Person or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) area or (B) obligates during any period of time, that restrict the right of any of the Companies or the Company Subsidiaries to sell to or its Subsidiaries (purchase from any Person or following to hire any Person, or that grants the Effective Time, Parent other party or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains person (A) “most favored nation” rights status or similar (B) exclusivity rights;
(iiiviii) all Contracts providing for indemnification to or from any collective bargaining agreementPerson (other than a Company or a Company Subsidiary) with respect to liabilities relating to any current or former business of any Company, labor union contract any Company Subsidiary or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementany predecessor Person;
(ivix) any agreement all joint venture or partnership, merger, asset or stock purchase or divestiture Contracts relating to Indebtedness of the any Company or Company Subsidiary;
(x) all Contracts with any of its Subsidiaries having an outstanding principal amount labor union;
(xi) all Contracts relating to a settlement involving a payment by a Company or a Company Subsidiary in excess of $10,000,000;100,000 of any administrative or judicial proceedings within the past two years; and
(vxii) any Contract that provides for the acquisition all other Contracts, whether or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory not made in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting involve a future or potential liability or receivable, as the Company case may be, in excess of $2,500,000 on an annual basis or one in excess of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) $5,000,000 over the current Contract term, or (B) permitting any third person to use, enforce have a term greater than two years and cannot be cancelled by a Company or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, Company Subsidiary without penalty or further payment and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of without more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreement90 days’ notice.
(b) Neither the Company nor any Subsidiary Each Material Contract: (i) as of the date hereof, is valid and binding on a Company is in breach of or default under the terms of any a Company Material Contract Subsidiary and, to the knowledge Knowledge of the CompanySellers, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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 counterparty thereto, and is in full force and effect; and (ii) upon consummation of the transactions contemplated by this Agreement, except to the extent that consents in respect of any Contract set forth in Section 3.05 of the Disclosure Schedule are not obtained or a Material Contract has been otherwise terminated in accordance with its terms, shall continue in full force and effect on identical terms immediately following the Closing Date. There are no disputes pending orAs of the date hereof, the Companies, the Company Subsidiaries and, to the knowledge Knowledge of the CompanySellers, threatened with respect to the counterparts thereto are not in material breach of, or default under, any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is has any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary received written notice of the Company, given notice any such breach or default. The Sellers have delivered or made available to the Company or Purchaser true and complete copies of all Material Contracts, including 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 foregoingamendments thereto.
Appears in 1 contract
Sources: Purchase Agreement (Forterra, Inc.)
Material Contracts. (a) Section 4.18(aSchedule 4.8(a) of lists or describes, by the Company Disclosure Schedule sets categories set forth a true and complete listbelow, as of the date of this Agreement, each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is boundassets or properties are bound (such Contracts to be so listed, “Material Contracts”) as of the date hereof:
(i) any “material contract” (as such term is defined Contract calling for payment or receipt by the Company of more than $100,000 in Item 601(b)(10) of Regulation S-K of calendar year 2015 or thereafter, and which cannot be cancelled by the SEC) Company without payment or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actpenalty on not more than 90 days’ notice;
(ii) any Contract that (A) imposes relating to outstanding Indebtedness or any restriction on guarantee, performance, bid or completion bond, or surety or indemnification agreement or similar Contract other than prepayments, deposits or trade credit made or provided in the right or ability ordinary course of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights’s business;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementReal Property Lease;
(iv) any agreement Servicing Agreement;
(v) any Contracts under which the Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person with remaining payments in excess of $25,000 annually;
(vi) any 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 $100,000 (except for Mortgage Loans, Pipeline Mortgage Loans or sales of Mortgaged Property in the ordinary course of business consistent with past practice);
(vii) any Contract relating to Indebtedness the acquisition or disposition of any business or operations (whether by merger, sale of equity interests, sale of assets, outsourcing or otherwise);
(viii) any joint venture, partnership, strategic alliance, teaming, cooperation or similar Contract involving a sharing of profits or losses or Liabilities or any Contract that relates to the formation, creation, operation, management or control of any Person;
(ix) any Contract for any period of time whatsoever, or in regard to the employment, or restricting the employment, of any officer or employee on a full-time, part-time, consulting or other basis providing annual base salary and guaranteed bonus in excess of $100,000;
(x) any Contract between the Company or any of its Affiliates, on the one hand, and Seller or any of its shareholders, on the other hand;
(xi) any License Agreement under which the Company receives or grants any rights with respect to Intellectual Property Rights or any option relating thereto (excluding licenses for off-the-shelf software that is generally commercially available with license and related fees of less than $25,000 annually);
(xii) any Contract that limits or purports to limit (or that following could reasonably be expected to limit) the ability of the Company, Buyer or any of their respective Affiliates (A) to compete in any line of business, with any Person, in any geographic area or during any period of time or (B) to solicit any customers or employees;
(xiii) any Contract that grants any right of first refusal or right of first offer or similar right to third parties or that limits or purports to limit the ability of the Company or any of its Subsidiaries having an outstanding principal amount Affiliates in excess any material respect to pledge, sell, transfer or otherwise dispose of $10,000,000any assets;
(vxiv) any Contract that provides contains any exclusivity restriction or a “most favored nation” clause obligating the Company or its Affiliates to change the material terms and conditions of such Contract or agreement based on better terms or conditions provided to other parties in similar Contracts;
(xv) each of the Financing Facilities;
(xvi) any hedging, swap, derivative or similar Contract;
(xvii) any Contract for the acquisition purchase or disposition sale of Mortgage Loans;
(xviii) any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions nondisclosure agreement or dispositions of inventory in confidentiality agreement or similar Contract entered into outside the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vixix) any joint venturesettlement agreement, partnershipassurance of discontinuance, limited liability company consent agreement, or strategic alliance agreement or memorandum of understanding with any Governmental Authority, and any other similar Contract entered into with a third party;any Governmental Authority; and
(viixx) any other Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its SubsidiariesCompany, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither Seller has made available to Buyer correct and complete copies of each Material Contract (including all modifications, amendments, supplements, annexes and schedules thereto and written waivers thereunder). Subject only to the effect, if any, of applicable Bankruptcy and Equity Exceptions, each Material Contract is valid and binding on the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the actual knowledge of Seller without inquiry, the Companyother counterparties thereto, no and to the actual knowledge of Seller without inquiry, is in full force and effect and enforceable against the other counterparties thereto in accordance with its terms. Except as set forth on Schedule 4.8(b), neither the Company nor, to the Knowledge of Seller, any other party to any Company such Material Contract is in breach of of, or default under the terms of under, any Company such Material Contract. Since December 31, in any material respect. No 2013, no event has occurred that could reasonably be expected to constitute a breach or not occurred through the Company’s default (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 an event which with notice or the lapse of time or both would constitute become a breach of or default default) under the terms of any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company such 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 by the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, or to the knowledge Knowledge of the CompanySeller, threatened with respect to by any counterparty thereto. The Company Material Contract, and has neither the Company given nor any of its Subsidiaries has received any written notice of the intention of a default under any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as that has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectpreviously been cured.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Securities Purchase Agreement (Cherry Hill Mortgage Investment Corp)
Material Contracts. (a) Section 4.18(aSchedule 4.15(a) of the Company Disclosure Schedule sets forth a true complete and complete list, as of the date of this Agreement, accurate list of the following Contracts written agreements and arrangements to which the Company or any of its the Company Subsidiaries is a party party, or by to which any of their respective assets, property or businesses are subject, or under which the Company or any of its the Company Subsidiaries is bound:has any outstanding rights or obligations (collectively, the “Material Contracts”):
(i) any “material contract” (as such term is defined mortgage, deed of trust, loan agreement, indenture, note, security agreement, installment obligation or other instrument for or relating to any borrowing of money, or extending of credit, in Item 601(b)(10) of Regulation S-K each case, to or from the Company or any of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany Subsidiaries;
(ii) any Contract that (A) imposes guaranty, direct or indirect, primary or secondary, by the Company or any restriction on the right or ability of the CompanyCompany Subsidiaries of any obligation for borrowings or otherwise, excluding (A)guarantees by the Company or any of its the Company Subsidiaries or any Affiliate of any the obligations of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or another Company Subsidiary and (B) obligates endorsements made for collection in the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct ordinary course of business consistent with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightspast practice;
(iii) any collective bargaining agreement, labor union contract arrangement providing for the grant of any preferential rights to purchase or trade union agreement (each, a “Collective Bargaining Agreement”) lease any of the assets of the Company or other works council agreementany of the Company Subsidiaries;
(iv) any agreement relating arrangement that obligates the Company or any of the Company Subsidiaries to Indebtedness conduct business on an exclusive or preferential basis with any Person;
(v) any Material Lease;
(vi) any personal property leases involving, in each case, annual payments in excess of $50,000;
(vii) any arrangement not otherwise set forth on Schedule 4.15(a) requiring expenditures by or payments to the Company or any of the Company Subsidiaries in an amount in excess of $50,000 per year;
(viii) any confidentiality or non-disclosure arrangement that restricts the ability of the Company or any of its the Company Subsidiaries having an outstanding principal amount in excess of $10,000,000to disclose or use any information;
(vix) any Contract that provides for arrangement containing noncompetition, non-solicitation or other limitations restricting the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) ability of the Company Disclosure Schedule and acquisitions or dispositions any of inventory the Company Subsidiaries to compete with any Person or in any geographic area or to solicit the ordinary course employees or customers of businessany Person;
(x) any arrangement imposing any restriction or business (whether by merger, limitation on the sale or other transfer of stock, sale any of the assets or otherwisesecurities of the Company or any of the Company Subsidiaries;
(xi) and that contains any joint venture, partnership or similar agreements involving the sharing of profits, losses, costs or liabilities by the Company or any of the Company Subsidiaries with any third party;
(xii) any arrangement relating to an acquisition, divestiture, merger or similar transaction containing representations, covenants, indemnities or other obligations (obligations, including any “earnout” or other deferred or contingent payment obligations) outstanding as of the date of this Agreement that are material to consideration, entered into by the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
in the past three (viii3) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract years that is individually could reasonably be expected to result in the payment or receipt future payments under such arrangement in excess of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole250,000; and
(xixiii) any Contract with undertaking to enter into any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses foregoing.
(ib) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a Buyer true and complete and correct copy copies of each Company Material Contract as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respectContracts. No event has occurred or not occurred through To the Company’s or any of its Subsidiaries’ action or inaction orKnowledge, to the knowledge as of the CompanyClosing, 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 has not had and would not reasonably be expected to haveset forth on Schedule 4.15(b), individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation each 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 Material Contracts is in full force and effect. There are no disputes pending orExcept as set forth on Schedule 4.15(b), with respect to each Material Contract: (i) such Material Contract is valid and binding on the Company or the applicable Company Subsidiary and, to the knowledge Company’s Knowledge, each of the other parties to such Material Contract (except to the extent that the enforceability thereof may be limited by (x) applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and (y) general principles of equity (regardless of whether considered in a proceeding in equity or at law), (ii) the Company or the applicable Company Subsidiary and, to the Company’s Knowledge, threatened with respect each of the other parties to any Company such Material Contract, has performed all obligations required to be performed by it thereunder in all material respects and neither is not in breach or default thereunder in any material respect and (iii) the Company nor any of its Subsidiaries or the applicable Company Subsidiary has not received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultand, convenience or otherwise any Company Material Contract, nor to the knowledge Company’s Knowledge, no event has occurred that, with or without notice or passage of the Companytime or both, is any such party threatening to do so, in each case except as has not had and would not or would reasonably be expected to have, individually or in the aggregateconstitute, a Company breach or default under such Material Adverse EffectContract.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Stock Purchase Agreement (Rexford Industrial Realty, Inc.)
Material Contracts. (a) Section 4.18(a2.14(a) of the Company Seller Disclosure Schedule sets forth a true true, correct and complete listlist of each Contract pursuant to which the Company is a party, to which any of its assets or properties are bound, or pursuant to which it has any rights and/or obligations, in each case in any one or more of the categories listed below (and each such Contract is listed under a heading in Section 2.14(a) of the Seller Disclosure Schedule that corresponds with the applicable clause among the following to which such Contract relates):
(A) all Contracts that provide for payments after the date hereof by or to the Company thereunder of more than $10,000 per year, including without limitation all such Contracts that are (1) Contracts with customers, vendors or the like, provided, that, with respect to purchase orders with customers, Section 2.14(a)(i) of the Seller Disclosure Schedule shall provide a list of all open purchase orders (without regard to such $10,000 threshold) as of the close of business on the last Business Day prior to the date of this Agreement, (2) Contracts for capital expenditures (including leases of personal property), supplies or services, (3) guarantees of third party obligations, and (B) Contracts with any current or former officer, employee or consultant of the following Contracts to which the Company for annual compensation or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actseverance agreements;
(ii) all Contracts that provide for change in control, retention, transaction bonus or similar arrangements, including obligations of the Company to make any Contract that (A) imposes payment to any restriction on the right or ability Person, including any holder of any equity securities of the Company, any of its Subsidiaries based upon or any Affiliate related to the value of any equity securities of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsCompany;
(iii) any all Contracts that are collective bargaining agreementagreements, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) Contracts or other written agreements or arrangements with any labor union, works council agreementcouncil, labor organization, or any other employee organization;
(iv) all Contracts that provide for any agreement relating to Indebtedness of the Company partnership, joint venture, strategic alliance, revenue sharing or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000other collaboration;
(v) all Contracts that relate to the sale or acquisition of any Contract assets of the Company, other than in the Ordinary Course, or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any assets of the Company, other than in the Ordinary Course; Stock Purchase Agreement
(vi) all Contracts that provides for relate to the acquisition or disposition of any business, a material amount of stock or assets (of any other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions Person or dispositions of inventory in the ordinary course of business) or business any real property (whether by merger, sale of stock, sale of assets or otherwise);
(vii) and all Contracts that contains representationsrestrict or prohibit the kinds of businesses in which the Company may engage, covenantsincluding any Contract containing a covenant not to compete or not to solicit, indemnities or limiting or purporting to limit the method or scope of conduct of the CID Business, or preventing the Company from engaging freely in any part of the CID Business anywhere in the world, or including restrictions on the Company’s ability to employ any Person in any market or geographical area, in each case binding on the Company or any employees or other obligations service providers of the Company;
(viii) all Contracts that relate to or evidence Indebtedness (including “earnout” guarantees), including as an indenture, mortgage, loan agreement, promissory note or other contingent payment obligations) outstanding as Contract for the borrowing of money or a line of credit or which otherwise places an Encumbrance on any assets of the date CID Business;
(ix) all Contracts with respect to Intellectual Property, Software or Source Code, including licenses (whether as licensor or licensee) (including all Third Party IP Licenses and Company IP Licenses), options, covenants not to assert, or other rights or immunity with respect to any Intellectual Property, Software or Source Code or Contract relating to the development, ownership or enforcement of this Agreement Intellectual Property, Software or Source Code, including without limitation any settlement or coexistence agreements, and including (A) Contracts with current or former employees, consultants, or contractors regarding the ownership, use, protection or nondisclosure of any Intellectual Property, Software, or Source Code and (B) any Contract relating to the licensing of Intellectual Property, Software, or Source Code by the Company from or to a third party (except licenses for commercially available, unmodified, off-the-shelf software purchased or licensed for less than a total cost of $5,000 in the aggregate entered into by the Company in the Ordinary Course);
(x) all Contracts that are material require the Company to purchase or sell a stated portion of the requirements or outputs of its business or that contain "take or pay" provisions;
(xi) all Contracts that provide for the indemnification of any other Person;
(xii) all Contracts that provide for the assumption of any Tax, environmental or other Liability of any Person;
(xiii) all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, sales representative, market research, marketing, consulting and advertising Contracts;
(xiv) [Intentionally Omitted];
(xv) all Contracts relating to swap, hedging, forward exchange or other derivative arrangements;
(xvi) all Contracts with any Governmental Authority;
(xvii) all Contracts between (1) the Company or any of its Subsidiaries, on the one hand, and (2) any other Seller Party or any director, officer, member, manager, employee, Affiliate, shareholder, or other service provider of a Seller Party, any of such individual's family members, or any of their respective Affiliates, on the other hand; Stock Purchase Agreement
(xviii) all powers of attorney with respect to the CID Business;
(vixix) all Real Property Leases;
(xx) all Contracts that involve any joint venture“most favored nation” rights or similar rights or obligations of the Company or other Person or any other similar provision;
(xxi) all Contracts pursuant to which the Company has or may have any Liability to any investment bank, partnershipbroker, limited liability company or strategic alliance agreement financial advisor, finder or other similar Contract Person (including an obligation to pay any legal, accounting, brokerage, finder’s or similar fees or expenses) in connection with a third partythis Agreement or the Transactions;
(viixxii) all Contracts that evidence the settlement or compromise of any Proceeding involving either (A) any Contract that obligates ongoing payment obligations by the Company, (B) the imposition of any non-monetary restrictions upon the Company that continue to be in effect or any (C) the admission of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personwrongdoing on the part of the Company;
(viiixxiii) any Contract all Contracts that (A1) granting cannot be terminated by the Company unless it provides advance notice of 30 days or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) more, or (B2) permitting any third person to usecannot be terminated by the Company without incurring a fee, enforce penalty, charge, payment or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇prepayment obligation;
(ixxxiv) any Contract all other Contracts that is expected are material to result in the payment assets or receipt the operation of more than $30,000,000 by the Company CID Business and its Subsidiaries in 2016not previously disclosed pursuant to this Section 2.14(a);
(xxxv) any outstanding binding commitment to enter into any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, type described in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses subsections (i) through (xixxvi) aboveof this Section 2.14(a); and
(xxvi) any Contract or group of Contracts with a Person or Governmental Authority the termination of which would be reasonably expected to have a material effect on the Company, are referred its assets, liabilities, or the CID Business and is not otherwise disclosed pursuant to herein as “Company Material Contractsthe other clauses of this Section 2.14(a).” The Company
(b) Seller has made available to Parent prior to the date of this Agreement Buyer a complete true and correct copy of each Company Material Contract as (including any and all amendments, supplements and modifications thereto) described in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary each of the Company is in breach clauses of or default under Section 2.14(a) above (collectively, the terms of any Company “Material Contract andContracts”); provided, however, that with respect to the knowledge purchase orders of the CompanyCID Business, no other party Seller has provided to any Company Buyer (i) a true and correct list of open purchase orders and (ii) copies of each purchase order requested to be reviewed by Buyer. Each Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had full force and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract effect and is a valid and binding obligation of the Company or and the Subsidiary of other parties thereto and is enforceable against the Company that and the other parties thereto in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is party thereto andconsidered in a Proceeding in equity or at law). Neither the Company nor, to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company a Material Contract to terminate for defaultis in breach of, convenience or otherwise default under, any Company Material Contract, nor to the knowledge . All certifications and representations submitted by or on behalf of the CompanyCompany in connection with any Material Contract were true and correct when given and all notices regarding the updating of such certifications and representations have been given if required. As of the date hereof, is neither Seller nor the Company has received any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually claim or in the aggregate, a Company notice of material breach of or material default under any Material Adverse Effect.
(c) Since January 1, 2016 to Contract. As of the date hereof, no Top Supplier party has indicated to Seller or Top Customer the Company its intent to terminate or modify any Material Contract. No Material Contract is subject to any material modifications, amendments or claims by any of the parties thereto, and there are no renegotiations, attempts to renegotiate or outstanding rights to negotiate any amount to be paid or payable to or by the Company under any Material Contract, and no Person has canceledgiven notice of any demand for renegotiation or threat of cancellation of any Material Contract. To the Company’s Knowledge, terminated no event has occurred or substantially curtailed its relationship circumstance exists that (with or without notice or lapse of time) may, in any material respect, contravene, conflict with or result in a violation or breach of, or give the Company or any Subsidiary of other Person the Companyright to declare a breach or default or exercise any remedy under, given notice or to accelerate the Company maturity or any Subsidiary of the Company of any intention performance of, or to cancel, terminate or substantially curtail its relationship with modify, any Material Contract. Subject to the Company or any Subsidiary receipt of the Companyconsents set forth on Section 1.5(a)(xii) of the Seller Disclosure Schedule, or, the transactions contemplated by this Agreement and the Transaction Documents will not afford any other party to a Material Contract the right to terminate or make any modifications to the knowledge terms of the Company, threatened to do any of the foregoing.Material Contract. Stock Purchase Agreement
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. Payments and Performance and/or Surety Bonds.
(ai) Section 4.18(a3.13(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, Letter lists all of the following Contracts contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries them is boundbound as of the date hereof:
(i1) any “material contract” (as such term is defined in Item 601(b)(10) contract involving the sale of Regulation S-K goods and/or performance of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of services by the Company, any of its Subsidiaries or any Affiliate Business Unit as a prime contractor pursuant to which revenues of at least $200,000 were derived for fiscal year 2006, pursuant to which revenues in excess of $100,000 have been received during the period beginning January 1, 2007 through and including May 31, 2007, or pursuant to which the Company has a backlog in excess of $100,000 outstanding as of June 30, 2007;
(2) any contract involving the sale of goods and/or performance of services by the Company, any of them its Subsidiaries or any Business Unit as a subcontractor pursuant to compete with which revenues of at least $200,000 were derived for fiscal year 2006, pursuant to which revenues in excess of $100,000 have been received during the period beginning January 1, 2007 through and including May 31, 2007, or pursuant to which the Company has a backlog in excess of $100,000 outstanding as of June 30, 2007;
(3) any contract pursuant to which the Company and its Subsidiaries paid more than $200,000 in fiscal year 2006, pursuant to which the Company and its Subsidiaries paid more than $100,000 during the period beginning January 1, 2007 through and including May 31, 2007, or pursuant to which the Company has an account payable or future performance or purchase obligation, which liabilities are in excess of $100,000 outstanding as of June 30, 2007, provided that intercompany contracts need only be disclosed if they invoke a value or backlog of $500,000 or more;
(4) any contract, other person in any line of business or geographic region (or that following than the Effective Time will restrict Convertible Notes, which restricts the ability of Parent the Company or any Subsidiary to (i) pay dividends or make distributions in respect of the Company's or any of its Affiliates Subsidiaries' capital stock, (ii) prepay any Indebtedness, (iii) incur Indebtedness or (iv) grant any Encumbrance on any of its properties or assets;
(5) any employment contract or any consulting agreement that required aggregate payments by the Company or any of its Subsidiaries of more than $100,000 in fiscal year 2006 or pursuant to which payments in excess of $100,000 are anticipated to be made in fiscal year 2007;
(6) any real property leases;
(7) any contract to be performed in whole or in part after the date hereof that provides for the making of capital expenditures by the Company or any of its Subsidiaries in excess of $50,000;
(8) any contract relating to Indebtedness;
(9) any contract relating to any loan or advance by the Company or any of its Subsidiaries to, or investment by the Company or any of its Subsidiaries in, any Person;
(10) any joint venture agreement or contract involving a sharing of profits;
(11) any guarantee or other contingent liability in respect of any Indebtedness or obligation of any Person;
(12) any guarantee by another Person of any obligation (contingent or otherwise) of the Company or any of its Subsidiaries, including all performance bonds or surety bonds and any other agreement to serve as a surety or other guarantor of performance of the Company or any Subsidiary's obligations;
(13) any contract limiting the ability of the Company or any of its Subsidiaries to engage in any line of business or to compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsPerson;
(iii14) any collective bargaining agreementwarranty, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) guaranty or other works council agreement;
(iv) any agreement relating similar undertaking with respect to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether a contractual performance extended by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;, other than in the ordinary course of business; and
(vi15) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates contract requiring the Company or any of its Subsidiaries to make indemnify or hold harmless any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual PropertyPerson, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not purchaser and/or licensee with respect to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) Intellectual Property or Licensed Intellectual Property or any Contract relating to the supply Person who was a director or executive officer of any item used an entity acquired by the Company or a Subsidiary any of its Subsidiaries and who did not become an employee, director or officer of the Company that is a sole source or any of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andbut excluding purchase orders and other revenue producing contracts entered into in the ordinary course of business.
(xiii) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Except as set forth on Section 4.18(a)(xi)(A3.13(b) of the Company Disclosure ScheduleLetter, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has furnished or made available to Parent prior to Purchaser, or filed with the date of this Agreement a SEC, complete and correct copy accurate copies of each Company Material Contract as in effect on the date Contract, other than those portions of this Agreement.
(b) Neither the Company nor any Subsidiary of Material Contracts the Company is in breach of not permitted to make available pursuant to applicable nondisclosure obligations imposed by Law or default under by the terms of any Company Material Contract and, to the knowledge Contract. Except as set forth on Section 3.13(b) of the CompanyDisclosure Letter, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a legal, valid and binding obligation of the Company or the Subsidiary one of the Company that is party thereto andits Subsidiaries, to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither is enforceable by the Company nor any or one of its Subsidiaries has received any written notice in accordance with its terms, subject to the Enforceability Exceptions. Except as set forth on Section 3.13(b) of the intention Disclosure Letter, the Company and its Subsidiaries have duly performed all of any other party to any Company their respective material obligations under each Material Contract to terminate for the extent those obligations have accrued and no material default, convenience violation, or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with breach by 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 CompanySubsidiaries, or, to the knowledge Knowledge of the Company, threatened to do any other party, under any contract has occurred which, in any material respect, affects the enforceability of such Material Contract or any counterparties' rights thereunder, including rights of termination, modification and acceleration.
(iii) Section 3.13(c) of the foregoingDisclosure Letter sets forth all payment and performance and/or surety bonds, or contracts relating to payment and performance and/or surety bonds, including any agreements with insurance brokers or other intermediaries relating to such payment and performance and/or surety bonds, maintained by, or on behalf of, the Company, setting forth the name of the issuer of each such bond, the holder of each such bond, information concerning any claim in excess of $10,000 asserted thereunder and other material information. Such bonds are in full force and effect on the date hereof and the Company has not received any notice from the issuer of any such bonds that such issuer is unwilling to continue to provide such bonds to the Company.
Appears in 1 contract
Sources: Merger Agreement (Compudyne Corp)
Material Contracts. (a) Section 4.18(a4.14(a) of the Company Disclosure Schedule sets forth a true and complete list, list of all Contracts which are in effect as of the date of this Agreement, of the following Contracts to hereof and which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) or any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K their respective businesses, properties or assets are bound that meet any of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement criteria (each, a “Collective Bargaining AgreementCompany Material Contract”) or other works council agreement;):
(ivi) any agreement relating to Indebtedness calls for the payment, reimbursement or offset by or on behalf of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for 15,000 per annum, or the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether delivery by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its SubsidiariesSubsidiaries of goods or services with a fair market value in excess of $15,000 per annum, during the remaining term thereof and which by its terms does not terminate or is not terminable without material penalty by the Company or any of its Subsidiaries upon ninety (90) days’ or less prior notice;
(viii) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates provides for the Company or any of its Subsidiaries to make receive any loanspayments, advances reimbursements or capital contributions tooffsets in excess of, or investments inany property with a fair market value in excess of $15,000 during the remaining term thereof, and which, by its terms, does not terminate or is not terminable without material penalty by the Company or any personof its Subsidiaries upon ninety (90) days’ or less prior notice;
(iii) contains covenants (A) limiting in any material respect the ability of the Company or any of its Subsidiaries (or any of their respective successors or Affiliates) to compete or operate in any line of business or geographical area or provide any products or services of or to any other Person, (B) obligating the Company or any of its Subsidiaries (or any of their respective successors or Affiliates) to conduct any business on an exclusive basis with any Person or (C) providing the counterparty thereto with “most favored nation,” rights of first refusal or offer or similar rights;
(iv) provides for Company or any of its Subsidiaries to receive material administrative services or management services;
(v) was entered into in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business or the shares, capital stock or other ownership interests of any other Person and (A) under which there are any material ongoing obligations or (B) which acquisition is not yet complete;
(vi) there is any option, warrant, call, subscription or other right, agreement, arrangement or commitment to acquire any business or the shares, capital stock or other ownership interests of any other Person;
(vii) was entered into with any Governmental Authority;
(viii) relates to any Contract indebtedness for borrowed money that creates payment obligations from or to any party to or from the Company or any of its Subsidiaries in excess of $15,000, other than in the ordinary course of business;
(ix) pursuant to which the Company or any of its Subsidiaries (A) granting the Company is granted or one of its Subsidiaries obtains any right to use any material Intellectual Property (other than licenses in respect of commercially any non-exclusive end user click-wrap, shrink-wrap, or form license agreement for commercial-off-the-shelf Software that is available software) or for immediate purchase by the general public), (B) permitting permits or agrees to permit any third person Person, or is permitted by any Person, to use, enforce or register use any material Intellectual Property, including (C) is restricted in the use, enforcement or registration of any material license agreements Intellectual Property, or (D) other than customary non-exclusive licensing provisions included as a result of limitations on the scope, territory or term of a license to Intellectual Property, is restricted in customerany material respect from using Intellectual Property to engage in any particular business or operating in any territory or during any period of time, supplier, and including co-packing existence agreements), coexistence settlement agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016assert Intellectual Property rights;
(x) any Contract relating pursuant to the supply of any item used by which the Company or a Subsidiary any of the Company that is a sole source of supply its Subsidiaries has directly or indirectly guaranteed or otherwise agreed to be responsible for indebtedness for borrowed money or other Liabilities of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andPerson in excess of $10,000;
(xi) is a Company Intercompany Agreement;
(xii) was entered into outside of the ordinary course of business;
(xiii) requires the Company or any of its Subsidiaries to indemnify any Person;
(xiv) is a Contract between a Company Service Provider, on the one hand, and the Company or any of its Subsidiaries, on the other hand;
(xv) creates any partnership, joint venture, limited liability company or similar arrangement;
(xvi) is a Contract between the Company or any of its Affiliates, on the one hand, and with any Top Supplier investment banker, broker, financial advisor or Top Customersimilar service provider, other thanon the other, in whether or not such agreement entitles such service provider to a fee as a direct result of the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(Atransactions contemplated by this Agreement; or
(xvii) is otherwise material to the business or operations of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority any of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreementits subsidiaries.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (i) Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary one of the Company that is party thereto its Subsidiaries and, to the knowledge Knowledge of the Company, of each other party or parties thereto, and in accordance with its terms and, unless terminated by the other parties thereto or expired in accordance with the terms of such Company Material Contract following the date hereof, is in full force and effect. There , subject to the Enforceability Exceptions and (ii) the Company and its Subsidiaries are no disputes pending ornot, and, to the knowledge Knowledge of the Company, threatened with respect to no other party thereto is in default in the performance, observance or fulfillment of any obligation, covenant or condition contained in each of the Company Material Contract, Contracts (and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is alleging any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectdefault).
(c) Since January 1, 2016 The Company has made available to the Purchaser prior to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the hereof copies of each 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 foregoingMaterial Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Unrivaled Brands, Inc.)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule 4.13 sets forth a true true, complete and complete list, as of the date of this Agreement, accurate list of the following types of Contracts to which the Company or any of its the Subsidiaries is a party or subject to or bound by:
(a) any Contract, including vendor or supply agreements, involving a commitment or payment by or to the Company or such Subsidiary in excess of $100,000;
(b) any Contract involving an unperformed commitment in excess of $100,000 which is not cancelable by the Company or such Subsidiary without penalty on less than 90 days notice;
(c) any Contract with any present or former shareholder, director, officer, employee, independent contractor or consultant for the employment or engagement of any such Person, including any independent contractor or consultant;
(d) any Contract pursuant to which the Company or any of its the Subsidiaries is bound:
(i) provides exclusivity or “Most Favored Nation” status to a third Person, or containing covenants limiting in any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K respect the freedom of the SEC) Company or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them their respective Affiliates to compete with any other person in any line of business or geographic region (area or that following the Effective Time will restrict the ability of Parent with any Person or its Affiliates to engage entity or engaging in any line of particular business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsactivities;
(iiie) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating Contract that purports to Indebtedness limit the ability of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000Subsidiary to solicit or hire employees;
(vf) any Contract that provides for relating to the acquisition licensing, distribution, use, development, ownership, purchase or disposition sale of any assets (other Intellectual Property Rights, excluding non-exclusive, commercially-available “off the shelf” licenses with annual fees of less than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries$100,000;
(vig) any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for borrowing or any pledge or security arrangement, except for credit with vendors in the Ordinary Course of Business;
(h) any joint venture, partnership, limited liability company development or strategic alliance supply agreement or other similar Contract with agreement which involves a third party;
(vii) any Contract that obligates sharing of revenues, profits, Losses, costs or Liabilities by or of the Company or any of its the Subsidiaries with any other Person;
(i) any Contract that relates to employment or that requires any severance, change in control, termination or similar payment to any employee of the Company or the Subsidiaries or pursuant to which the Company or the Subsidiaries is or may become obligated to make any loansseverance, advances bonus, change in control or capital contributions to, or investments in, other similar payment to any personemployee upon the consummation of the Transactions;
(viiij) Contracts for the lease of any Contract (A) granting of the material assets of the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇Subsidiary;
(ixk) any acquisition, merger, divestiture or similar agreement, other than vendor or supply agreements entered into in the Ordinary Course of Business; and
(l) any Contract that is expected material to result in the payment or receipt Business of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
. All Contracts of the type described in (xia) any Contract with any Top Supplier or Top Customerthrough (l) above (the “Material Contracts”) are valid and are in full force and effect and constitute legal, other than, in the case of each Top Supplier valid and each Top Customers identified in Section 4.18(a)(xi)(A) binding obligations of the Company Disclosure Scheduleor a Subsidiary, Contracts thatas the case may be, in and, to the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts Knowledge of the types referred Company, of the other parties thereto, and, assuming the valid authorization, execution and delivery by the other parties thereto, such Material Contracts are enforceable in accordance with their respective terms subject to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” the Bankruptcy and Equity Exception. The Company has made available provided true, correct and complete copies of all the Material Contracts to Parent Ticketmaster prior to the date of this Agreement Agreement. With respect to all Material Contracts that are oral in form, the Company has provided to Ticketmaster a complete and correct copy accurate summary of each Company Material Contract as in effect on the material terms of such oral Contracts prior to the date hereof. The Company has no Knowledge of this Agreement.
(b) any notice or threat to terminate any such Material Contracts by any Person, including any Affiliate of a Material Stockholder, and neither the Company or any Subsidiary is contemplating terminating such Material Contracts. Neither the Company nor any Subsidiary of the Company Subsidiaries is and is not alleged to be in breach of or material default under any such Material Contract. The Transactions will not result in any violation of or failure by the terms of any Company Material Contract andCompany, or to the knowledge Knowledge of the Company, no any other party to any Company a Material Contract is in breach of to comply with any applicable, Law or default under the terms of any Company Material Contract, in any material respectPermit. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither Neither the Company nor any of its the Subsidiaries has received is currently paying liquidated damages in lieu of performance under any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Merger Agreement (Ticketmaster)
Material Contracts. (a) Section 4.18(aSubsections (i) through (iii) of Section 4.16 of the Company Disclosure Schedule sets forth contain a true and complete list, as of the date of this Agreement, list of the following Contracts types of contracts and agreements to which the Company or any of its Subsidiaries Subsidiary is a party (such contracts, agreements and arrangements as are required to be set forth in Section 4.16(a) of the Disclosure Schedule being the "MATERIAL CONTRACTS"):
(i) all contracts and agreements that limit, or by which purport to limit, the ability of the Company or any Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(ii) any agreement with (A) a Principal Stockholder of the Company or any of its Subsidiaries is bound:
affiliates, (iB) any “material contract” other controlling affiliate of the Company, or (C) any director, executive officer or, if other than in the ordinary course of business consistent with past practice, any other officer of the Company or any of his or her affiliates or any "associates" or members of his or her "immediate family" (as such term is terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act); and
(iii) all other contracts and agreements, that would be "material contracts" for purposes of Paragraph 10 of Item 601(b)(10) 601 of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither Except as would not have a Material Adverse Effect on the Company nor any Subsidiary Company, (i) each Material Contract is a legal, valid and binding agreement, and none of the Company Material Contracts is in breach of default by its terms or default under has been canceled by the terms of any Company Material Contract and, other party; (ii) to the knowledge of the Company's knowledge, no other party to any Company Material Contract is in breach of or violation of, or default under under, any Material Contract; (iii) the terms Company and the Subsidiaries are not in receipt of any Company Material Contractclaim of default under any such agreement; and (iv) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a default under, in give rise to cancellation rights, or otherwise adversely affect any material respect. 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 's rights under 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. The Company has furnished or made available to Parent true and complete copies of all Material Contracts, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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 including any amendments thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. (a) Section 4.18(a4.15(a) of the Company Disclosure Schedule sets Letter contains a true, complete and correct list of the following Contracts to which any Company Party or Subsidiary of any Company Party is a party as of the date of this Agreement (such Contracts, whether or not set forth a true on Section 4.15(a) of the Company Disclosure Letter and complete list, including any Contract entered into after the date hereof in accordance with the terms of this Agreement that would have been required to be set forth on Section 4.15(a) of the Company Disclosure Letter if it had been entered into as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:“Material Contracts”):
(i) all joint venture Contracts, partnership arrangements or other agreements involving a sharing with any “material contract” third party of profits, losses, costs or liabilities by any Company Party or Subsidiary of any Company Party of more than $100,000 in any fiscal year (as such term is defined or its equivalent at prevailing exchange rates in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actanother currency);
(ii) any Contract that all Contracts (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) since January 1, 2021 or (B) pursuant to which any Company Party or Subsidiary of any Company Party has any outstanding indemnification, earnout or deferred or contingent payment obligations that would reasonably be expected to involve payments, by or to any Company Party or any Subsidiary of a Company Party after December 31, 2022 (in each case, excluding, for the avoidance of doubt, acquisitions or dispositions of assets or properties in the ordinary course of business);
(iii) all Contracts relating to Indebtedness for borrowed money (including commitments to provide such Indebtedness) of any Company Party or Subsidiary of any Company Party;
(iv) all Contracts (A) that limit, or purport to limit, in any material respect, the ability of any Company Party or Subsidiary of any Company Party to compete in any line of business or with any Person or entity (other than the Company Parties and their respective Subsidiaries) or in any geographic area or during any period of time or in any customer segment; (B) that contains representationsprovide for “exclusivity” or any similar requirement or “most favored nation” or similar rights, covenantsin each case in favor of any Person other than any Company Party or Subsidiary of any Company Party; or (C) granting any put, indemnities call, right of first refusal, right of first negotiation, right of first offer, redemption or similar right in favor of any Person other than any Company Party or Subsidiary of any Company Party;
(v) voting or other obligations (including “earnout” Contracts governing how any Company Securities, Management Holdings Securities or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its SubsidiariesBlocker Securities shall be voted;
(vi) any joint ventureall Contracts to allocate, partnershipshare or otherwise indemnify for Taxes, limited liability company or strategic alliance agreement or other similar Contract with a third partythan Commercial Tax Agreements;
(vii) all Material Real Property Leases;
(viii) all Company IP Agreements relating to material Company IP, except for (A) shrink-wrap or click-wrap licenses for off the shelf Software; (B) non-exclusive licenses of Company Owned IP granted in the ordinary course of business; (C) Contracts under which a license to Intellectual Property is merely incidental to the transaction contemplated in such Contract; (D) confidentiality and non-disclosure agreements entered into in the ordinary course of business; and (E) agreements exclusively among any Contract that obligates of the Company Parties or one or more of their respective Subsidiaries, on the one hand, and one or more of the Subsidiaries of the Company Parties, on the other hand or pursuant to which employees or contractors have assigned their rights in and to Company Owned IP to a Company Party or a Subsidiary of a Company Party in the ordinary course of business.
(ix) all Contracts involving the settlement of any Action pursuant to which any Company Party or Subsidiary of any Company Party has any ongoing material obligations (other than customary confidentiality obligations); and
(x) all Contracts (not covered by any of the other clauses in this Section 4.15(a)) requiring aggregate payments in excess of $500,000 per annum which cannot be canceled by any Company Party or any of its Subsidiaries to make any loans, advances without penalty or capital contributions to, or investments in, any person;without more than 90 days’ notice.
(viiib) any Contract (A) granting Except as would not, individually or in the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to useaggregate, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is be reasonably expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is be material to the Company Parties and its their respective Subsidiaries, taken as a whole; and
(xi) any , each Material Contract is in full force and effect, and is legal, valid, binding and enforceable in accordance with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of its terms against the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses Parties and their respective Subsidiaries (ias applicable) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no the other party parties thereto, except that the failure to renew upon expiration in ordinary course of any Company such Contract shall not be deemed to be a termination. True, complete and correct copies of each Material Contract is in breach (and, as applicable, a written summary of or default under the terms of any Company oral Material ContractContracts) have been made available to Parent Parties, in each case, as of the date hereof. None of the Company Parties, any material respect. No event has occurred or not occurred through the Company’s or Subsidiary of any of its Subsidiaries’ action or inaction Company Party or, to the knowledge of the Company, through any other party thereto is in violation of or in default under (nor does there exist any condition which upon the action or inaction of any third party, that with notice or the lapse passage of time or the giving of notice or both would constitute cause such a breach violation of or default under under) any Material Contract to which it is a party or by which it or any of its properties or other assets is bound, nor have any of them given or received any notice alleging any of the terms same.
(c) Section 4.15(c) of any the Company Disclosure Letter lists the 10 largest customers of the Company Parties and their respective Subsidiaries (measured by revenues recognized by the Company Parties and their respective Subsidiaries) for the calendar year ended 2022 (the “Material Contract, in each case except Customers”).
(d) Section 4.15(d) of the Company Disclosure Letter lists the 10 largest suppliers of the Company Parties and their respective Subsidiaries (measured by aggregate amounts paid or payable by the Company Parties and their respective Subsidiaries) for the calendar year ended 2022 (the “Material Suppliers”).
(e) Except as has not had and would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to havebe material to the Company Parties and their respective Subsidiaries, individually or in the aggregatetaken as a whole, a Company Material Adverse Effect.
(c) Since since January 1, 2016 2023, no Material Customer or Material Supplier has (i) canceled or otherwise terminated its relationship with respect to the date hereof, no Top Supplier Company Parties and their respective Subsidiaries or Top Customer has canceled, terminated (ii) provided written notice to the Company Parties or substantially curtailed any of their Subsidiaries of its intent to cancel or otherwise terminate its relationship with the Company Parties and their respective Subsidiaries. Notwithstanding anything to the contrary in this Agreement, it is agreed that (x) Material Contracts that are statements of work, purchase orders, order acknowledgements, invoices or any Subsidiary similar documents for the purchase or sale of products or services entered into in the ordinary course of business shall not be required to be listed on Section 4.15(a) of the CompanyCompany Disclosure Letter and (y) true, given notice correct and complete copies of Material Contracts that are statements of work, purchase orders or invoices for the purchase or sale of products or services entered into in the ordinary course of business shall not be required to have been made available to Parent if they do not deviate in any material respect from the standard forms for such counterparty or that otherwise do not impose terms on the Company or any Subsidiary of its Subsidiaries that are not customary for the industries in which the Company of any intention to cancel, terminate or substantially curtail and its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoingSubsidiaries operate.
Appears in 1 contract
Sources: Merger Agreement (Forward Air Corp)
Material Contracts. (a) Except for this Agreement, Section 4.18(a4.17(a) of the Company Disclosure Schedule sets forth Letter contains a true complete and complete correct list, as of the date of this Agreementhereof, of each Contract described in this Section 4.17(a) under which the following Contracts Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any of its Subsidiaries Company Subsidiary is a party or to which any of their respective properties or assets is subject, other than any Company Benefit Plans (all Contracts of the type described in this Section 4.17(a), whether or not set forth in Section 4.17(a) of the Company Disclosure Letter, being referred to herein as “Material Contracts”):
(i) each Contract that limits in any material respect the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Effective Time) to compete or engage in any line of business or geographic region or with any Person or sell, supply or distribute any product or service or that otherwise has the effect of restricting in any material respect the Company, the Company Subsidiaries or affiliates (including Parent and its affiliates after the Effective Time) from the development, marketing or distribution of products and services, in each case, in any geographic area;
(ii) any material 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;
(iii) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by which the Company or any Company Subsidiary of future payments (whether in cash, equity or otherwise) in excess of $1,000,000;
(iv) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase goods, products and off-the-shelf Technology) after the date hereof with consideration of more than $1,000,000;
(v) any Contract for the license of (or grant of rights in or to use) Intellectual Property Rights, AI Technology, Personal Data, or Technology, other than (A) non-exclusive out-licenses (or non-exclusive grants of rights) granted in the ordinary course of business, and (B) non-exclusive in-licenses of (or non-exclusive grants of rights in) (1) immaterial Intellectual Property Rights in the ordinary course of business, (2) commercially available Technology (including AI Technology) with annual aggregate or one-time fees of less than $250,000, or (3) Personal Data where such Personal Data are used in the ordinary course of business of the Company or a Company Subsidiary;
(vi) any material settlement or similar Contract with a Governmental Entity containing unpaid monetary obligations or ongoing injunctive relief (other than (A) confidentiality and non-disparagement restrictions and covenants not to sue that are, in each case, customary and ancillary to the monetary relief granted and (B) requirements that the Company or any Company Subsidiaries comply with applicable Law), other than those relating to (A) Taxes or (B) any Company Government Contract where the Governmental Entity acts in its capacity as a customer of the Company or any of its Subsidiaries is bound:Subsidiaries;
(ivii) except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, any settlement or similar Contract restricting in any respect the operations or conduct of the Company or any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Effective Time);
(viii) each Contract pursuant to which the Company or any Company Subsidiary has paid or received payments in excess of $2,500,000 in the fiscal year ended December 31, 2023, or is obligated to pay or entitled to receive payments in excess of $2,500,000 in the 12-month period following the date hereof, in each case, other than (A) Contracts solely between the Company and a wholly-owned Company Subsidiary or solely between wholly-owned Company Subsidiaries, (B) Company Leases and (C) Contracts otherwise described in any other subsection of this Section 4.17(a);
(ix) except where the exercise of any such right or imposition of such limitation has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Subsidiary or any of its affiliates (including Parent or any of its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or assets;
(x) each Contract that is (A) a Material Customer Agreement or (B) a Material Supplier Agreement;
(xi) each Contract in which the Company or any Company Subsidiary has granted any exclusivity rights or “most favored nations” provisions, in each case that are material in any respect to the Company or its affiliates (including Parent or its affiliates after the Effective Time);
(xii) each Contract not otherwise described in any other subsection of this Section 4.17(a) evidencing outstanding Indebtedness for borrowed money (or commitments in respect thereof) of the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $2,000,000 other than Contracts solely between the Company and a wholly-owned Company Subsidiary or solely between wholly-owned Company Subsidiaries;
(xiii) each Contract 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, any beneficial owner, directly or indirectly, of more than 5% of the shares of Company Common Stock or, to the Knowledge of the Company, 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, excluding any such Contract entered into in the ordinary course of business on commercially reasonable, arms’ length terms and is not material to the Company;
(xiv) each of the top 10 Company Leases based on rent paid by the Company or a Company Subsidiary in the fiscal year ended December 31, 2023;
(xv) each Company Government Contract pursuant to which the Company or any Company Subsidiary received payments in excess of $1,000,000 in the fiscal year ended December 31, 2023;
(xvi) each Specified Contract;
(xvii) each Contract for the provision of material third-party labor-, workforce-related or other outsourcing services; and
(xviii) any Contract not otherwise described in any other subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of with respect to the type that would be required to be disclosed under Company (other than those agreements and arrangements described in Item 404(a601(b)(10)(iii) of Regulation S-K promulgated under of the Exchange Act;SEC).
(iib) any True and complete copies of each Material Contract that (A) imposes any restriction on the right or ability in effect as of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region date hereof have been made available (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage be made available in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business accordance with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h4.17(b) of the Company Disclosure Schedule Letter) to Parent or publicly filed with the SEC prior to the date hereof (other than purchase orders and acquisitions or dispositions statements of inventory work entered into in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use which do not contain any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants terms not to ▇▇▇;
(ix) any Contract that is expected to result contained in the payment or receipt underlying Material Contract, which purchase orders and statements of more than $30,000,000 by the Company and its Subsidiaries work also shall not be required to be individually listed in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top CustomerLetter). All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Company Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation To the Company’s Knowledge, as of the Company or the Subsidiary of the Company that is party thereto anddate hereof, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Material Contract is in breach of or default under the terms of any Material Contract where such breach or default has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is a valid, binding and enforceable obligation of the Company or the Company Subsidiary which is party thereto and, to the Company’s Knowledge, of each other party thereto, and is in full force and effect, subject to the Enforceability Limitations and any expiration thereof in accordance with its terms existing as of the date hereof.
(c) Since January 1Except as has not had and would not reasonably be expected to have, 2016 to individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Government Contract was legally awarded, (ii) no Company Government Contract or outstanding Company Government Bid is, as of the date hereof, no Top Supplier the subject of bid, award, or Top Customer size protest proceedings, and (iii) neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Government Contract. Except as has cancelednot had and would not reasonably be expected to have, terminated individually or substantially curtailed its relationship with in the aggregate, a Company Material Adverse Effect, since January 1, 2022, (A) all material facts set forth or acknowledged by any representations, certifications or statements made or submitted by or on behalf of the Company or any Company Subsidiary in connection with any Company Government Contract or Company Government Bid were true and complete as of the date of submission and made by an authorized representative of the Company or a Company Subsidiary, and (B) neither any Governmental Entity nor any prime contractor or higher-tier subcontractor has notified the Company or any Company Subsidiary in writing that the Company or any Company Subsidiary has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Company Government Contract. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since January 1, 2022, (1) no costs incurred by the Company or any Company Subsidiary in excess of $1,000,000 per annum pertaining to any Company Government Contract have been deemed finally disallowed in writing by a Governmental Entity or, to the Company’s Knowledge, given notice proposed for disallowance, and (2) no payment due to the Company or any Company Subsidiary pertaining to any Company Government Contract has been withheld or set off, nor, to the Company’s Knowledge, has any claim been made to withhold or set off any such payment.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since January 1, 2022, (i) none of the Company, any Company Subsidiary or, to the Company’s Knowledge, any of their respective other Principals (as defined in Federal Acquisition Regulation 52.209-5) has been debarred, suspended or excluded, or to the Company’s Knowledge, proposed for debarment, suspension or exclusion, from participation in or the award of Contracts or subcontracts for or with any intention to cancelGovernmental Entity or doing business with any Governmental Entity, terminate or substantially curtail its relationship with (ii) none of the Company or any Company Subsidiary has received any written request to show cause, (iii) none of the Company or any Company Subsidiary has been declared non-responsible or ineligible, or otherwise excluded from participation in the award of any Contract with a Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements), (iv) none of the Company or any Company Subsidiary is for any reason listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, (v) neither the Company nor any Company Subsidiary, nor any of their respective directors or officers, nor to the Company’s Knowledge, orany other employee is or has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity with respect to the award or performance of any Company Government Contract, (vi) to the Company’s Knowledge, neither the Company nor any Company Subsidiary is the subject of any actual, or threatened, “whistleblower” or “qui tam” lawsuit, audit by a Governmental Entity (other than a routine contract audit) or investigation by a Governmental Entity of the Company or any Company Subsidiary with respect to any Company Government Contract, including any material irregularity, misstatement or omission arising thereunder or relating thereto alleged in writing, and, to the knowledge Company’s Knowledge, there is no basis for any such investigation, indictment, lawsuit or audit, and (vii) neither the Company nor any Company Subsidiary has made any (A) voluntary disclosure to any Governmental Entity with respect to any alleged material irregularity, misstatement, omission, fraud or price mischarging, or other violation of Law, arising under or relating to a Company Government Contract or (B) mandatory disclosure, pursuant to Federal Acquisition Regulation 52.203-13 or similar Governmental Entity mandatory reporting requirements, to any Governmental Entity and, to the Company’s Knowledge, threatened to do any of the foregoingthere are no facts that would require mandatory disclosure thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.18(aSchedule 3.09(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of this Agreement, all of the following Contracts to which the Company or any of its Transferred Companies and their Subsidiaries is are a party or by which the Company or any of its Subsidiaries their respective properties is bound:bound (each, a “Material Contract”):
(i) Contracts evidencing the obligation of any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) Transferred Companies or their Subsidiaries with respect to the issuance, sale, repurchase or redemption of any Contract that is equity interests of any of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActTransferred Companies or their Subsidiaries;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement Contracts relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (capital stock or other than obligations set forth equity interests, or any business or product line of any Person, for aggregate consideration in the capital expenditure budget set forth on Section 6.1(h) excess of $100,000 and pursuant to which any of the Transferred Companies or their Subsidiaries has any material actual or contingent liabilities or obligations as of the date of this Agreement;
(iii) Contracts relating to the formation, creation, governance or control of any Transferred Company Disclosure Schedule or its Subsidiaries or any joint venture, partnership or other similar arrangement to which a Transferred Company or its Subsidiary is a party;
(iv) Contracts that contain (i) exclusivity or require any Transferred Company or any Subsidiary of a Transferred Company to deal with a third Person on a “sole source” basis or (ii) most favored nation obligations or restrictions binding on any Transferred Company or any Subsidiary of a Transferred Company;
(v) Contracts limiting or purporting to limit the ability of the Transferred Companies and acquisitions their Subsidiaries to engage or dispositions compete in any line of inventory business, acquire any entity or compete with any Person or in any geographic area or during any period of time, except for such Contracts entered into in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third partyReal Property Leases;
(vii) 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;
(viii) any Contract Contracts under which (A) granting the any Person has directly or indirectly guaranteed any liabilities or obligations of a Transferred Company or its Subsidiary or (B) a Transferred Company or one of its Subsidiaries has guaranteed any right liabilities or obligations of any other Person;
(viii) Contracts relating to use any material Intellectual Property indebtedness for borrowed money of the Transferred Companies and their Subsidiaries (other than licenses in respect of commercially available software) whether incurred, assumed, guaranteed or (B) permitting any third person to use, enforce secured by the assets owned by the Transferred Companies or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreementstheir Subsidiaries), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in intercompany Contracts between, the payment Transferred Companies or receipt their Subsidiaries, on the one hand, and Seller or an employee, officer, director, manager, member or Affiliate of more Seller (other than $30,000,000 by the Company Transferred Companies and its Subsidiaries in 2016their Subsidiaries), on the other hand;
(x) any Contract relating not otherwise listed above which would reasonably be expected to require payments to or from any of the supply Transferred Companies or their Subsidiaries to a third party in excess of any item used $500,000 per annum and which is not terminable by either the counterparty or the applicable Transferred Company or its Subsidiary on notice of 90 days or less without a Subsidiary of the Company that is a sole source of supply of any raw material, component premium or service that is material to the Company and its Subsidiaries, taken as a whole; andpenalty;
(xi) Contract for employment of any Contract Employee of the Business on a full-time, part-time, consulting or other basis providing annual cash compensation equal to or in excess of $200,000;
(xii) contract or benefit plan that provides for a payment, benefit or accelerated vesting for the benefit of any Employee of the Business upon the execution of this Agreement or the Closing or in connection with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses transactions contemplated by this Agreement; or
(xiii) any Collective Bargaining Agreement;
(i) through (xi) aboveSubject to bankruptcy, are referred insolvency, reorganization, moratorium or other similar Laws affecting or relating to herein as “Company creditors’ rights generally, each Material Contracts.” The Company has made available to Parent prior Contract and Transferred Contract is valid, binding and in full force and effect with respect to the date of this Agreement a complete and correct copy of each Transferred Company Material Contract as in effect on the date of this Agreement.
(b) Neither the Company nor any or its Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of Seller or default under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any one of its Subsidiaries’ action or inaction orAffiliates, to the knowledge of the Companyas applicable, 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of Seller, the Company, of each other party theretothereto and (ii) none of the Transferred Companies or their Subsidiaries or Seller or one of its Affiliates, and as applicable, is in full force and effectmaterial breach under any Material Contract or Transferred Contract. There are no disputes pending orTo Seller’s knowledge, to the knowledge as of the Companydate of this Agreement, threatened with respect none of the other parties to any Company Material ContractContract or Transferred Contract is in material breach thereunder and no event or circumstance has occurred that, and neither the Company nor any with notice or lapse of its Subsidiaries has received any written notice of the intention time, or both, would result in termination of any other party to any Company Material Contract to terminate for defaultor Transferred Contract or would cause or permit the acceleration of, convenience or otherwise other changes to, any Company Material Contract, nor to material right or obligation thereunder or the knowledge loss of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectmaterial benefit thereunder.
(c) Since January 1Schedule 3.09(c) sets forth, 2016 to as of the date hereofof this Agreement, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary all 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 foregoingCommingled Contracts.
Appears in 1 contract
Sources: Stock Purchase Agreement (Factset Research Systems Inc)
Material Contracts. (a) Section 4.18(a4.14(a) of the Company Disclosure Schedule sets forth a true and complete list, list of all Contracts which are in effect as of the date of this Agreement, of the following Contracts to hereof and which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) or any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K their respective businesses, properties or assets are bound that meet any of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement criteria (each, a “Collective Bargaining AgreementCompany Material Contract”) or other works council agreement;):
(ivi) any agreement relating to Indebtedness calls for the payment, reimbursement or offset by or on behalf of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for 20,000 per annum, or the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether delivery by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its SubsidiariesSubsidiaries of goods or services with a fair market value in excess of $20,000 per annum, during the remaining term thereof and which by its terms does not terminate or is not terminable without material penalty by the Company or any of its Subsidiaries upon ninety (90) days or less prior notice;
(viii) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates provides for the Company or any of its Subsidiaries to make receive any loanspayments, advances reimbursements or capital contributions tooffsets in excess of, or investments inany property with a fair market value in excess of $20,000 during the remaining term thereof (and which by its terms does not terminate or is not terminable without material penalty by the Company or any of its Subsidiaries upon ninety (90) days or less prior notice;
(iii) contains covenants (A) limiting in any material respect the ability of the Company or any of its Subsidiaries (or any of their respective successors or Affiliates) to compete or operate in any line of business or geographical area or provide any products or services of or to any other Person, (B) obligating the Company or any personof its Subsidiaries (or any of their respective successors or Affiliates) to conduct any business on an exclusive basis with any Person or (C) providing the counterparty thereto with “most favored nation,” rights of first refusal or offer or similar rights;
(iv) provides for Company or any of its Subsidiaries to receive material administrative services or management services;
(v) was entered into in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business or the shares, capital stock or other ownership interests of any other Person and (A) under which there are any material ongoing obligations or (B) which acquisition is not yet complete;
(vi) there is any option, warrant, call, subscription or other right, agreement, arrangement or commitment to acquire any business or the shares, capital stock or other ownership interests of any other Person;
(vii) was entered into with any Governmental Authority;
(viii) relates to any Contract indebtedness for borrowed money that creates payment obligations from or to any party to or from the Company or any of its Subsidiaries in excess of $20,000, other than in the ordinary course of business;
(ix) pursuant to which the Company or any of its Subsidiaries (A) granting the Company is granted or one of its Subsidiaries obtains any right to use any material Intellectual Property (other than licenses in respect of any non- exclusive end user click-wrap and shrink-wrap license to Software that is generally commercially available software) or available), (B) permitting permits or agrees to permit any third person Person, or is permitted by any Person, to use, enforce or register use any material Intellectual Property, including (C) is restricted in the use, enforcement or registration of any material license agreements Intellectual Property, or (D) other than customary non-exclusive licensing provisions included as a result of limitations on the scope, territory or term of a license to Intellectual Property, is restricted in customerany material respect from using Intellectual Property to engage in any particular business or operating in any territory or during any period of time, supplier, and including co-packing existence agreements), coexistence settlement agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016assert Intellectual Property rights;
(x) any Contract relating pursuant to the supply of any item used by which the Company or a Subsidiary any of the Company that is a sole source of supply its Subsidiaries has directly or indirectly guaranteed or otherwise agreed to be responsible for indebtedness for borrowed money or other Liabilities of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andPerson in excess of $10,000;
(xi) is a Company Intercompany Agreement;
(xii) was entered into outside of the ordinary course of business;
(xiii) requires the Company or any of its Subsidiaries to indemnify any Person;
(xiv) is a Contract between a Company Service Provider, on the one hand, and the Company or any of its Subsidiaries, on the other hand;
(xv) creates any partnership, joint venture, limited liability company or similar arrangement;
(xvi) is a Contract between the Company or any of its Affiliates, on the one hand, and with any Top Supplier investment banker, broker, financial advisor or Top Customersimilar service provider, other thanon the other, in whether or not such agreement entitles such service provider to a fee as a direct result of the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(Atransactions contemplated by this Agreement; or
(xvii) is otherwise material to the business or operations of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority any of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreementits Subsidiaries.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (i) Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary one of the Company that is party thereto its Subsidiaries and, to the knowledge Knowledge of the Company, of each other party or parties thereto, and in accordance with its terms and, unless terminated by the other parties thereto or expired in accordance with the terms of such Company Material Contract following the date hereof, is in full force and effect. There , and (ii) the Company and its Subsidiaries are no disputes pending ornot, and, to the knowledge Knowledge of the Company, threatened with respect to no other party thereto is in default in the performance, observance or fulfillment of any obligation, covenant or condition contained in each of the Company Material Contract, Contracts (and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is alleging any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectdefault).
(c) Since January 1, 2016 The Company has made available to the Purchaser prior to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the hereof copies of each 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 foregoingMaterial Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Section 4.18(a2.12(a) of the Company Disclosure Schedule sets forth a true lists (and complete list, describes the material terms if the Contract is oral) each Contract (other than purchase orders) in effect as of the date of this Agreement, of the following Contracts Agreement to which the Company or any of its Subsidiaries is a party or by which in the Company or any of its Subsidiaries is bound:following categories (the “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract for the type that would be required to be disclosed under Item 404(a) purchase or sale of Regulation S-K promulgated under assets, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the Exchange Actprovision or receipt of services;
(ii) any Contract that (A) imposes with any restriction on the right or ability customer of the CompanyCompany that generated revenue in excess of $100,000 in the 12-month period ended September 30, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights2021;
(iii) any collective bargaining agreementContract that permits any Person other than the Company to market, labor union contract offer, distribute or trade union agreement (eachsell any Company Products or services, a “Collective Bargaining Agreement”) or other works council agreementincluding distribution, sales representative and similar agreements;
(iv) any Contract related to an acquisition, divestiture, merger, material licensing agreement relating to Indebtedness or similar transaction containing representations, covenants, indemnities, purchase price payments, “earn-outs,” adjustments or other obligations;
(A) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing Debt of the Company or providing for the creation of or granting any Lien upon any of its Subsidiaries having an outstanding principal amount in excess the property or assets of $10,000,000;
the Company (vexcluding Permitted Encumbrances); (C) any Contract that provides for the acquisition (1) relating to any loan or disposition of advance to any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) Person which is outstanding as of the date of this the Agreement that are material to or (2) obligating or committing the Company to make any such loans or advances; (D) any currency, commodity or other hedging or swap contract; and (E) any Contract under which any Person has guaranteed any liabilities or obligations of its Subsidiariesthe Company;
(vi) any Contract creating or purporting to create any partnership or joint venture, partnership, limited liability company venture or strategic alliance agreement any sharing of profits or other similar Contract losses by the Company with a any third party;
(vii) any Contract that obligates with Health Care Professionals, other than nondisclosure agreements or purchase orders entered into in the Company or any ordinary course of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personbusiness;
(viii) any Contract (A) granting all agreements pursuant to which the Company or one of its Subsidiaries has consigned to any right to use Person any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇Inventory;
(ix) any settlement agreement or similar Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016with a Governmental Body;
(x) any Contract relating with, or pursuant to the supply of any item used by which the Company or a Subsidiary of the Company that is a sole source of supply of supplies products to, any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andGovernmental Body;
(xi) any Contract with an Affiliate;
(xii) any Top Supplier Contract creating or Top Customerpurporting to create any obligation to pay or receive any royalty or similar payment;
(xiii) any Contract (A) containing covenants restricting competition which would have the effect of prohibiting the Company or, after the Closing, Parent, the Merger I Surviving Corporation or the Merger II Surviving Company from engaging in any business or activity in any geographic area or other thanjurisdiction; (B) in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person; (C) that includes minimum purchase conditions, take-or-pay or other requirements imposed on the Company, in either case that exceed $100,000 in any calendar year; (D) containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, must be at least as favorable to such party as those offered to another Person; or (E) covenants restricting solicitation which, in either case, have or would have the effect of prohibiting the Company or, after the Closing, Parent, the Merger I Surviving Corporation or the Merger II Surviving Company from engaging in any solicitation of employees, customers, distributors or activities in any geographic area or other jurisdiction;
(xiv) any Contract involving commitments to make capital expenditures or to purchase or sell assets involving $100,000 or more individually;
(xv) any Real Property Lease;
(xvi) any Contract that contains any standstill or similar agreement pursuant to which the Company has agreed not to acquire assets or securities of another Person;
(xvii) any employment agreement, offer letter, independent contractor agreement, or other Contract for the employment or engagement of any current director, officer, employee, or individual independent contractor of the Company that: (1) provides for annual compensation or payments in excess of $150,000 or (2) is not immediately terminable by the Company without penalty, severance, or other cost or Liability;
(xviii) any Contract with any Person that provides for retention payments, change of control payments, accelerated vesting or any other payment or benefit that will become due as a result of the Mergers or any other transaction contemplated by this Agreement;
(xix) any Contract that contains a put, call, or similar right pursuant to which the Company could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value of purchase price of more than $100,000;
(xx) any collective bargaining agreement or other agreements with labor unions;
(xxi) any Contract that was not negotiated and entered into on an arm’s-length basis; and
(xxii) any Intellectual Property Contract.
(b) With respect to each Material Contract listed or required to be listed in Section 2.12(a) of the Disclosure Schedule: (i) such Material Contract is, and to the Company’s Knowledge, with respect to each party thereto other than the Company, valid, binding and enforceable against such party in accordance with its terms, subject to (A) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies; (ii) such Material Contract is in full force and effect; (iii) the Company is not in material breach or material default of such Material Contract or, with the giving of notice or the giving of notice and passage of time without a cure would be, in material breach or material default of such Material Contract, and to the Company’s Knowledge, no other party to such Material Contract is in material breach or material default of such Material Contract; and (iv) the Company has not given or received, nor does the Company intend nor to the Company’s Knowledge does any counterparty intend, to provide any written notice of termination or non-renewal of any Material Contract. The Company has delivered or otherwise made available to Parent or its counsel true and complete copies of each such written Material Contract and a written description of each oral Material Contract, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) Material Contracts entered into on or before the date of the Company Disclosure Schedulethis Agreement, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Agreement and Plan of Merger (Bionano Genomics, Inc)
Material Contracts. (a) Other than as set forth in Section 4.18(a) 3.14 of the Company Disclosure Schedule sets forth Schedule, neither Peninsula nor any of its Subsidiaries is a true and complete listparty to or bound by, as of the date of this Agreementhereof, any of the following Contracts (each contract, arrangement, commitment or understanding of the type described in this Section 3.14(a), whether written or oral and whether or not set forth in the Disclosure Schedule, is referred to which as a “Material Contract”):
(i) any contract or agreement entered into since January 1, 2011 (and any contract or agreement entered into at any time to the Company extent that material obligations remain as of the date hereof), other than in the ordinary course of business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity;
(ii) any trust indenture, mortgage, promissory note, loan agreement or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Peninsula or any of its Subsidiaries is a party lender, borrower or by which guarantor other than agreements evidencing deposit liabilities, trade payables and contracts or agreements relating to borrowings entered into in the Company ordinary course of business;
(iii) any contract or agreement limiting the freedom of Peninsula or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or to compete with any other Person or prohibiting Peninsula or any of its Subsidiaries from soliciting customers, clients or employees, in each case whether in any specified geographic area) region or (B) obligates the Company business or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementgenerally;
(iv) any contract or agreement relating to Indebtedness with any Affiliate of the Company Peninsula or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000Subsidiaries;
(v) any Contract that provides for agreement of guarantee, support or indemnification by Peninsula or its Subsidiaries, assumption or endorsement by Peninsula or its Subsidiaries of, or any similar commitment by Peninsula or its Subsidiaries with respect to, the acquisition obligations, liabilities (whether accrued, absolute, contingent or disposition otherwise) or indebtedness of any assets (other Person other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory those entered into in the ordinary course of business;
(vi) any agreement which would be terminable other than by Peninsula or business (whether by mergerits Subsidiaries or any agreement under which a material payment obligation would arise or be accelerated, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding in each case as a result of the date announcement or consummation of the transactions contemplated by this Agreement that are material (either alone or upon the occurrence of any additional acts or events);
(vii) any alliance, cooperation, joint venture, shareholders’ partnership or similar agreement involving a sharing of profits or losses relating to the Company Peninsula or any of its Subsidiaries;
(viviii) any joint venture, partnership, limited liability company employment agreement with any employee or strategic alliance agreement officer of Peninsula or other similar Contract with a third partyany of its Subsidiaries;
(viiix) any Contract broker, distributor, dealer, agency, sales promotion, customer or client referral, underwriter, administrative services, market research, market consulting or advertising agreement providing for annual payments by Peninsula or its Subsidiaries of more than $50,000;
(x) any agreement, option or commitment or right with, or held by, any third party to acquire, use or have access to, any assets or properties, or any interest therein, of Peninsula or its Subsidiaries, other than in connection with the sale of Loans, Loan participations or investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Peninsula;
(xi) any contract or agreement that obligates contains any (A) exclusive dealing obligation, (B) “clawback” or similar undertaking requiring the Company reimbursement or refund of any fees, (C) “most favored nation” or similar provision granted by Peninsula or any of its Subsidiaries or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of Peninsula or any of its Subsidiaries to make own, operate, sell, transfer, pledge or otherwise dispose of any loans, advances assets or capital contributions to, or investments in, any personbusiness;
(viiixii) any Contract (A) granting material contract or agreement which would require any consent or approval of a counterparty as a result of the Company or one consummation of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇the transactions contemplated by this Agreement;
(ixxiii) any Contract that is expected contract under which Peninsula or any Peninsula Subsidiary will have a material obligation with respect to result in an “earn-out,” contingent purchase price or similar contingent payment obligation, or any other material liability after the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016date hereof;
(xxiv) any Contract relating lease or other contract (whether real, personal or mixed, tangible or intangible) pursuant to which the supply annualized rent or lease payments for the lease year that includes December 31, 2013, as applicable, were in excess of $75,000;
(xv) any item used contract or agreement for the use or purchase of materials, supplies, goods, services, equipment or other assets providing for aggregate payments by the Company Peninsula or a Subsidiary its Subsidiaries of the Company that is a sole source of supply of $75,000; and
(xvi) any raw material, component or service contract not listed above that is material to the Company and financial condition, results of operations or business of Peninsula or its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary Peninsula and its Subsidiaries have performed in all material respects all of the Company is obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged (or otherwise to the Knowledge of Peninsula) to be in breach of or default under the terms of any Company in respect of, each Material Contract andto which Peninsula or its Subsidiaries are a party or by which Peninsula or its Subsidiaries are bound, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effectbe material to Peninsula and its Subsidiaries. Each Company of the Material Contract Contracts is a valid and binding obligation of the Company on Peninsula or the its applicable 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. There are , without amendment, and there exists no disputes pending default or event of default or event, occurrence, condition or act, with respect to Peninsula or its Subsidiaries or, to the knowledge Knowledge of the CompanyPeninsula, threatened with respect to any Company other contracting party, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default under any Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultexcept, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to havenot, individually or in the aggregate, a Company be material to Peninsula and its Subsidiaries. True, correct and complete copies of all Material Adverse EffectContracts have been furnished or made available to Mackinac.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth 2.5 contains a true and complete list, as of the date of this Agreement, of the following Contracts each Contract (each of which shall be deemed a "Material Contract"), to which the Company or any of its Subsidiaries is a party or by to which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of their respective properties is subject or by which any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;thereof is bound that:
(iiia) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates the Company or any of its Subsidiaries to make any loanspay an amount in excess of $5,000,000 during the fiscal year ending December 31, advances 1999 or capital contributions tothe fiscal year ending December 31, or investments in, any person2000;
(viiib) any Contract (A) granting relates to the sale of goods and/or the provision of services pursuant to which the Company or one any of its Subsidiaries expect to accrue revenue in excess of $10,000,000 during the fiscal year ending December 31, 1999 or the fiscal year ending December 31, 2000;
(c) limits or restricts the ability of the Company or any right of its Subsidiaries to use compete or otherwise to conduct its Business in any material Intellectual Property manner or place;
(d) involves an obligation for borrowed money in excess of $250,000, or provides for a guaranty for borrowed money or is a letter of credit, comfort letter, surety or other than licenses bond in an amount in excess of $250,000 by the Company or any of its Subsidiaries in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (Person other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;the Company or any of its Subsidiaries; or
(ixe) any Contract that creates a partnership, limited liability company or joint venture; or
(f) is expected to result a collective bargaining agreement, employment or consulting agreement or severance or other agreement providing for severance payments or other additional rights or benefits (whether or not optional) in the payment event of the sale of the Company or receipt any of its Subsidiaries; or
(g) is an agreement (including purchase orders, work assignment requests and work assignment authorizations) between the Company or any of its Subsidiaries and any other division, unit or Affiliate of Seller other than the ISD Division requiring payments to or by the Company or any of its Subsidiaries of more than $30,000,000 by 1,000,000 during the fiscal year ending December 31, 1999 or the fiscal year ending December 31, 2000. Material Contracts shall be deemed not to include any of the following: (i) real estate leases described in Section 2.6, (ii) Contracts relating to Intellectual Property licenses described in Section 2.7 and commercial "off the shelf" software, (iii) matters listed in Schedule 2.21 or (iv) Government Contracts. Except as set forth in Schedule 2.5, true copies of the agreements identified on Schedule 2.5, including all substantive amendments and modifications thereto but excluding proprietary pricing or technical information in the possession of the Company or its Subsidiaries as of the date of this Agreement, have been made available to Buyer. Except as set forth on Schedule 2.5, each Material Contract is valid and in full force and effect according to its terms, and the Company and its Subsidiaries that are parties thereto have performed any accrued obligations thereunder in 2016;
all material respects and have not received written notice alleging a default or breach under any such Material Contract. Except as set forth on Schedule 2.5, consummation of the transactions contemplated by this Agreement will not (xand will not give any Person a right to) terminate or modify any Contract relating to the supply rights of any item used by the Company or a Subsidiary any of its Subsidiaries under any Material Contract, except for any of the Company foregoing that is would not have a sole source material adverse effect on the business, financial condition or results of supply operations of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. (a) Section 4.18(aSchedule 2.12(a)(i) – (xi) of the Company Disclosure Schedule sets forth all Contracts (except for purchase or service orders executed in the Ordinary Course of Business) to which the Company and its Subsidiaries is a true and complete listparty or the Company, as or its Subsidiaries or any of their respective assets or properties are otherwise bound or that otherwise relate to the business of the date of this AgreementCompany or its Subsidiaries, of the following Contracts type described below (each, a “Material Contract”):
(i) Any contract, agreement or purchase order providing for the sale of products, the provision of services or warranty liability in excess of $150,000, in any such case, by the Company or any of its Subsidiaries to any other Person;
(ii) Any single contract or purchase order providing for an expenditure by the Company or any of its Subsidiaries in excess of $150,000 or any contracts or purchase orders with the same or affiliated vendor(s) providing for an expenditure by the Company or any of its Subsidiaries in excess of $150,000;
(iii) Any contract pursuant to which the Company or any of its Subsidiaries is the lessee or sublessee of, or holds or operates, any personal property owned or leased by any other Person or entity (other than leases of personal property leased in the Ordinary Course of Business with annual lease payments no greater than $50,000);
(iv) Any loan agreement, factoring agreement, indenture, promissory note, conditional sales agreement, mortgage, security agreement, pledge, letter of credit arrangement, guarantee, assumption, surety, support, endorsement, foreign exchange contract, commodity contract, interest rate or other derivative contract, accommodation or other similar type of Contract; in each case, in an amount in excess of $25,000.
(v) Any Contract containing outstanding obligations relating to the settlement of any Action;
(vi) All partnership, limited liability company, joint venture or similar Contracts relating to the Company and or its Subsidiaries;
(vii) Any sales agency, sales representation, consulting, distributorship or franchise agreement that is (i) projected to provide for the Company and/ or its Subsidiaries to make or receive payments in excess of $150,000 in a calendar year or (ii) are not terminable on ninety (90) days or less without penalty;
(viii) Any Contract (A) prohibiting competition by the Company or any of the Company’s Subsidiaries, (B) binding any party to any exclusive business arrangement, or (C) prohibiting the Company or any of its Subsidiaries or their employees from freely engaging in any business anywhere in the world, in each case, excluding Contracts governing exclusive license and distribution relationships which are set forth in Schedule 2.12(a)(ix) of the Company Disclosure Schedule entered into in the Ordinary of Business which generally contain standard exclusivity provisions along with other restrictive covenants;
(ix) Any license, consent, permission, covenant not to s▇▇ or other agreement by which the Company or any Subsidiary licenses from a third party Intellectual Property that is material to the conduct of the business of the Company or Subsidiary (and, for the avoidance of doubt, expressly excluding any license of commercial Software licensed on non-discriminatory terms), or by which the Company or any Subsidiary permits a third party to use any Company Intellectual Property;
(x) Any contract pursuant to which the Company or any of its Subsidiaries is bound:
(i) has entered into or has agreed to enter into any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights hedging or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a wholetransactions; and
(xi) Any commitment to do any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to foregoing described in clauses (i) through (xi) above, 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 Agreementx).
(b) Neither For the Company nor any Subsidiary purpose of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregatethis Agreement, a Company Material Adverse Effect. Each Company Material Contract is a valid “Contract” and binding obligation of collectively, the Company or the Subsidiary of the Company that is party thereto and“Contracts” shall mean, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contracta Person, and neither the Company nor any each written or oral contract, agreement, commitment, license, lease, indenture, or evidence of its Subsidiaries has received any written notice of the intention of any other indebtedness to which such Person is a party to any Company Material Contract to terminate for default, convenience or is otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectobligated.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. (a) Except as set forth on Section 4.18(a4.7(a) of the Disclosure Schedules, no Target Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party to any written or by which the Company or any of its Subsidiaries is bound:
oral: (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) contract or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that agreement containing (A) imposes any restriction on the right a fixed cost, fixed price, volume requirement or ability of the Company, any of its Subsidiaries other floor or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) similar requirement or (B) obligates an “earn-out” or other contingent payment obligation (other than contracts entered into with customers or suppliers in the Company Ordinary Course of Business); (ii) contract or its Subsidiaries agreement for any supply contracts that was not made in the Ordinary Course of Business and that cannot be terminated or cancelled on less than ninety (or following the Effective Time, Parent or its Subsidiaries90) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
days’ notice; (iii) any collective bargaining agreement, labor union contract or trade union agreement providing for (eachA) the provision of goods, a “Collective Bargaining Agreement”including the purchase of materials, supplies or equipment or (B) management, consulting, marketing, advertising or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount services, in each case, including aggregate consideration in excess of $10,000,000;
100,000; (iv) consulting agreement or contract providing for the employment or engagement of any current service provider on a full-time, part-time or consulting basis, in each case (A) whereby such individual earns over $50,000 annually or (B) which cannot be terminated or cancelled at any time without any Liability; (v) collective bargaining agreement or other contract with any Contract union, association or other labor organization; (vi) contract or agreement that provides for relates to the acquisition or disposition divestiture of any business, a material amount of stock or assets (of any other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions Person or dispositions of inventory in the ordinary course of business) or business any real property (whether by merger, sale of stock, sale of assets or otherwise) and that contains representationssince January 1, covenants2017, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as in each case involving amounts in excess of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
$400,000; (vii) contract or agreement for capital expenditures in excess of $50,000, in the aggregate for which the underlying assets have not been delivered or under which a Target Company has 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;
outstanding payment obligations; (viii) any Contract lease, sublease or similar agreement which by any Target Company, or holds or uses, any tangible personal property or real property owned by any third party having a value of more than $50,000 in the aggregate; (ix) any lease, sublease or similar agreement with any Person under which any Target Company is a lessor or sublessor of, or makes available for use to any Person, any Real Property; (x) agreement, mortgage, indenture, note, bond, loan or credit agreement, security agreement, guaranty or indemnity or other agreement or instrument relating directly or indirectly to the 13 borrowing or lending of money, extension of credit or other evidence of indebtedness or providing for the mortgaging or pledging of, or otherwise placing a lien or security interest (including Encumbrances) on, any of its assets or properties; (xi) option, warrant or other contract for the purchase of any debt or equity security of any corporation, or for the issuance of any debt or equity security, or the conversion of any obligation, instrument or security into debt or equity securities, of any Target Company; (xii) contract or agreement under which (A) granting the any Person has directly or indirectly guaranteed Indebtedness or other Liabilities of a Target Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting a Target Company has directly or indirectly guaranteed Indebtedness or other Liabilities of any third person to usePerson (in each case, enforce other than endorsements for the purpose of collection in the Ordinary Course of Business), in any such case which, individually, is in excess of $150,000; (xiii) contract or register agreement under which a Target Company has, directly or indirectly, made any material Intellectual Propertyadvance, including loan, extension of credit or capital contribution to, or other investment in, any material license agreements Person (other than customary non-exclusive licensing provisions included extensions of trade credit in customer, supplier, and co-packing agreementsthe Ordinary Course of Business), coexistence agreements and covenants not in any such case which, individually, is in excess of $150,000; (xiv) contract or agreement providing for indemnification of any Person with respect to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract Liabilities relating to the supply current or former Business or any predecessor Person under which any Target Company has any continuing Liability in excess of $150,000; (xv) except for contracts or agreements entered into in the Ordinary Course of Business, any contract or agreement that provides for consequential or special damages, continuing representation or warranty or any indemnification obligation or under which any Target Company has any continuing Liability in excess of $150,000; (xvi) settlement agreement of any item used by administrative or judicial proceedings within the past five (5) years; (xvii) intellectual property (including trademark) licensing agreement under which a Target Company or a Subsidiary of the Company that is a sole source of supply licensor or licensee of any raw materialintellectual property; (xviii) joint venture, component partnership or service that is material to the similar contract or agreement in which a Target Company and its Subsidiaries, taken participates as a wholepartner, member or joint venturer or otherwise involves a sharing of profits or Liabilities by a Target Company with any other Person; and
(xixix) contract or agreement with any Governmental Body; (xx) contract or agreement related to Related Party Transactions; (xxi) contract or agreement with any Material Customer; (xxii) contract or agreement with any Material Supplier; (xxiii) any Contract with any Top Supplier surety, performance or Top Customer, completion bond or other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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.surety arrangements;
Appears in 1 contract
Sources: Equity Purchase Agreement (Granite Construction Inc)
Material Contracts. (a) Except for this Agreement, Section 4.18(a4.17(a) of the Company Disclosure Schedule sets forth Letter contains a true complete and complete correct list, as of the date of this Agreementhereof, of each Contract described in this Section 4.17(a) under which the following Contracts Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any of its Subsidiaries Company Subsidiary is a party or by to which any of their respective properties or assets is subject, other than any Company Benefit Plans (all Contracts of the type described in this Section 4.17(a), whether or not set forth in Section 4.17(a) of the Company or any of its Subsidiaries is bound:Disclosure Letter, being referred to herein as “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any each Contract that is of limits in any material respect the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability freedom of the Company, any of its Subsidiaries Company Subsidiary or any Affiliate of any of them their respective affiliates (including Parent and its affiliates after the Effective Time) to compete with any other person or engage in any line of business or geographic region (or with any Person or sell, supply or distribute any product or service or that following otherwise has the effect of restricting in any material respect the Company, the Company Subsidiaries or affiliates (including Parent and its affiliates after the Effective Time will restrict Time) from the ability development, marketing or distribution of Parent or its Affiliates to engage products and services, in any line of business or compete each case, in any geographic area;
(ii) any material joint venture or limited liability company agreement (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsContract;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the each acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as that would reasonably be expected to result in the receipt or making by the Company or any Company Subsidiary of future payments (whether in cash, equity or otherwise) in excess of $1,000,000;
(iv) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase goods, products and off-the-shelf Technology) after the date hereof with consideration of this Agreement more than $1,000,000;
(v) any Contract for the license of (or grant of rights in or to use) Intellectual Property Rights, AI Technology, Personal Data, or Technology, other than (A) non-exclusive out-licenses (or non-exclusive grants of rights) granted in the ordinary course of business, and (B) non-exclusive in-licenses of (or non-exclusive grants of rights in) (1) immaterial Intellectual Property Rights in the ordinary course of business, (2) commercially available Technology (including AI Technology) with annual aggregate or one-time fees of less than $250,000, or (3) Personal Data where such Personal Data are used in the ordinary course of business of the Company or a Company Subsidiary;
(vi) any material settlement or similar Contract with a Governmental Entity containing unpaid monetary obligations or ongoing injunctive relief (other than (A) confidentiality and non-disparagement restrictions and covenants not to sue that are material are, in each case, customary and ancillary to the monetary relief granted and (B) requirements that the Company or any Company Subsidiaries comply with applicable Law), other than those relating to (A) Taxes or (B) any Company Government Contract where the Governmental Entity acts in its capacity as a customer of the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had been, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a Company Material Adverse Effect. Each Company Material whole, any settlement or similar Contract is a valid and binding obligation restricting in any respect the operations or conduct of the Company or any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Subsidiary of Effective Time);
(viii) each Contract pursuant to which 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to or any Company Material ContractSubsidiary has paid or received payments in excess of $2,500,000 in the fiscal year ended December 31, and neither 2023, or is obligated to pay or entitled to receive payments in excess of $2,500,000 in the Company nor any of its Subsidiaries has received any written notice of 12-month period following the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do sodate hereof, in each case case, other than (A) Contracts solely between the Company and a wholly-owned Company Subsidiary or solely between wholly-owned Company Subsidiaries, (B) Company Leases and (C) Contracts otherwise described in any other subsection of this Section 4.17(a);
(ix) except as where the exercise of any such right or imposition of such limitation has not had been, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Material Adverse Effect.Subsidiary or any of its affiliates (including Parent or any of its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or assets;
(cx) Since January 1, 2016 to the date hereof, no Top each Contract that is (A) a Material Customer Agreement or (B) a Material Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with Agreement;
(xi) each Contract in which the Company or any Company Subsidiary of the Companyhas granted any exclusivity rights or “most favored nations” provisions, given notice in each case that are material in any respect to the Company or its affiliates (including Parent or its affiliates after the Effective Time);
(xii) each Contract not otherwise described in any Subsidiary other subsection of the Company this Section 4.17(a) evidencing outstanding Indebtedness for borrowed money (or commitments in respect thereof) of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Company Subsidiary (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $2,000,000 other than Contracts solely between the Company and a wholly-owned Company Subsidiary or solely between wholly-owned Company Subsidiaries;
(xiii) each Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly-owned Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 1 contract
Material Contracts. (a) Section 4.18(a4.13(a) of the Company Disclosure Schedule of Exceptions sets forth a true an accurate, correct and complete listlist of all instruments, as of the date of commitments, agreements, arrangements and understandings, whether oral or written, (other than this Agreement, of the following Contracts to which the Company Agreement or any of its Subsidiaries the Ancillary Agreements) to which Seller is a party or bound and that primarily relate to the Business or the Brands, or by which the Company or any of its Subsidiaries is the Purchased Assets are subject or bound, and are not otherwise designated as an Excluded Asset, meeting any of the descriptions set forth below:
(i) any “material contract” contract with any current customer or client of Seller (as such term is defined A) with respect to which Seller recognized cumulative revenue during the year ended March 31, 2014 in Item 601(b)(10excess of $500,000 (B) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actcontains most favored customer pricing provisions;
(ii) any Contract contract with any supplier of goods (including software) and/or services with respect to which Seller made cumulative expenditures during the year ended March 31, 2014 greater than $500,000;
(iii) contracts that contain provisions granting any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person;
(Aiv) imposes any restriction on contract limiting in any respect the right or ability of the CompanySeller to engage in any line of business, any of its Subsidiaries or any Affiliate of any of them to compete with any other person Person in any line of business or geographic region (the manner or locations in which any of them may engage, or that following otherwise prohibits or limits the Effective Time will restrict the ability right of Parent Seller to make, sell or its Affiliates to engage in distribute any line of business products or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000services;
(v) any contract with any Affiliate of Seller;
(vi) any contract relating to or evidencing Indebtedness;
(vii) any joint venture, partnership or cooperative arrangement or any other agreement involving a sharing of profits or costs;
(viii) any contract pursuant to which Seller has been granted or otherwise receives any right to use third party intellectual property rights or third party Software used by Seller primarily in the Business (each such contract a “Third Party License”) except for licenses for third party commercially available Software that (A) is used for internal business purposes, such as word processing, financial, database or other business software, and (B) has an individual acquisition cost of $50,000 or less;
(ix) any Assumed Contract that provides prohibiting the Seller from exploiting any Intellectual Property Rights in any way, other than non-material contracts entered into by Seller in the ordinary course of the Business;
(x) any Assumed Contract under which the Seller is required to indemnify any third party for or against any interference, infringement, dilution, misappropriation, or violation with respect to any Intellectual Property Rights, other than non- material contracts entered into by Seller in the ordinary course of the Business;
(xi) any Third Party Licenses pursuant to which any annual royalty or other fees in excess of $200,000 is payable by Seller for the acquisition use of or disposition of right to use any assets Intellectual Property Rights;
(xii) other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions contracts entered into with customers or dispositions of inventory clients in the ordinary course of business) , any contract pursuant to which Seller has licensed, authorized or business (whether by mergerotherwise permitted any third party to use, sale distribute or otherwise exploit the Intellectual Property Rights with respect to which Seller recognized cumulative revenue during the year ended March 31, 2014 in excess of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries$250,000;
(vixiii) any joint venturecontract for the purchase or sale of any assets of Seller, partnershipother than in the ordinary course of business, limited liability company or strategic alliance agreement any contract granting an option or other similar Contract with a third partypreferential right to purchase or sell any assets of Seller in excess of $250,000;
(viixiv) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract contract relating to the supply acquisition by Seller of a business or the equity interests of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a wholeother Person; and
(xia) any Contract with any Top Supplier other contract, commitment, agreement, arrangement or Top Customer, understanding (other than, than those excluded by an express exception from the descriptions set forth in the case subsections above) which provides for payment or performance by either party thereto having an aggregate value of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A$250,000 or (b) of any contract or agreement with a Governmental Body; and
(xvi) any other contract that is otherwise material to the Company Disclosure ScheduleBusiness. The foregoing, Contracts that, in together with the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types Personal Property Leases are collectively referred to in clauses (i) through (xi) above, are referred to herein as the “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) Neither the Company nor any Subsidiary Accurate, correct and complete copies of the Company is in breach of or default under the terms of any Company each Material Contract and, have been delivered to the knowledge of the Company, no other party to any Company Buyer. Each Material Contract is in breach of full force and effect and is valid, binding and enforceable with respect to the applicable Seller and, to Seller’s Knowledge, with respect to each other party thereto, in accordance with its terms. Seller and, to Seller’s Knowledge, each other party thereto has complied in all material respects with all commitments and obligations on its part to be performed or default observed under the terms of any Company each Material Contract, in any material respect. No event has occurred which is or, after the giving of notice or not occurred through the Company’s passage of time, or both, would constitute a default under or a breach of any of its Subsidiaries’ action or inaction Material Contract by Seller, or, to the knowledge Seller’s Knowledge, by any other party. Seller has not received or given notice of an intention to cancel or terminate a Material Contract or to exercise or not exercise options or rights under a Material Contract. Except as set forth in Section 4.13(b) of the CompanySchedule of Exceptions, through the action consummation of the transactions contemplated hereby, without notice to or inaction Consent of any third party, that with notice will not constitute a default under or the lapse of time or both would constitute a breach of or default under the terms any provision of any Company a Material Contract, in and each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, will continue to the knowledge of the Company, of each other party thereto, and is be in full force and effect. There are no disputes pending or, to effect in accordance with its terms immediately after the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectClosing.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. Except for Contracts listed in Section 4.17 of the Disclosure Schedule or filed as exhibits to the Company SEC Reports, neither the Company nor any Company Subsidiary is a party or bound by any Contract (each such contract and agreement described in clauses (a) Section 4.18(athrough (i) below, being a “Material Contract”) (notwithstanding anything below, “Material Contract” shall not include any contract that (1) is terminable upon 90 days’ notice without a penalty or premium, (2) will be fully performed and satisfied as of or prior to Closing, or (3) is by and among only the Company and any Company Subsidiary or among Company Subsidiaries) that, as of the date hereof:
(a) calls for aggregate annual payments (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) by, or other consideration from, the Company or any Company Subsidiaries under such contract of more than $2,500,000 over the remaining term of such contract;
(b) contains any non-compete or exclusivity provisions that restrict in any material respect the right of the Company Disclosure Schedule sets forth or any Affiliate to conduct any line of business in which the Company or any Affiliate is currently engaged or to compete with any Person or operate in any geographic area or location in which the Company or any Affiliate may conduct business;
(c) is a true partnership, limited liability company agreement, joint venture or other similar agreement entered into by the Company or any Company Subsidiary with any Third Party;
(d) obligates the Company or a Company Subsidiary to purchase or sell, by merger, purchase or sale of assets or stock or otherwise, any real property, including any Company Property or any asset that if purchased by the Company or any Company Subsidiary would be a Company Property;
(e) obligates the Company or any Company Subsidiary to indemnify any director or executive officer of the Company or any Company Subsidiary (other than the Organizational Documents);
(f) provides for potential liability on the part of the Company or any Company Subsidiary in respect of any purchase price adjustment, earn-out or contingent purchase price that, in each case, could reasonably be expected to result in future payments of more than $2,500,000; or relates to the settlement or proposed settlement of any Action, which involves the issuance of equity securities or the payment of an amount in excess of $2,500,000;
(g) is a loan agreement, letter of credit, indenture, note, bond, debenture, mortgage or any other document, agreement or instrument evidencing a capitalized leased obligation or other Indebtedness of the Company or any Company Subsidiary with a principal amount as of the date hereof in excess of $5,000,000;
(h) constitutes a loan to any Person (other than a wholly-owned Company Subsidiary) by the Company or a Company Subsidiary (other than advances made pursuant to and complete listexpressly disclosed in a lease, development agreement or development addendum to which the Company or a Company Subsidiary is a party) in an amount in excess of $1,000,000; or
(i) any other Contract that is in full force and effect as of the date of this AgreementAgreement that is filed or required to be filed as an exhibit to a Company SEC Report filed on or after January 1, of the following Contracts 2013 pursuant to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding . Except as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants would not to ▇▇▇;
(ix) any Contract that is reasonably be expected to result in the payment or receipt of more than $30,000,000 by the have a Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw materialMaterial Adverse Effect, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither neither the Company nor any Company Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, any Company Material Contract, in (ii) none of the Company or the Company Subsidiaries have received any material respect. No claim of default under any such agreement, and (iii) no event has occurred which would constitute a breach or not occurred through the Company’s violation of, or a default under, any of its Subsidiaries’ action Material Contract (in each case, with or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that with without 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 both). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. Each Company , each Material Contract is a valid valid, binding and binding obligation of enforceable in accordance with its terms and is in full force and effect with respect to the Company or the Subsidiary of the Company that is party thereto Subsidiaries and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to the other parties thereto. The Company has made available to Parent copies of all Material Contracts (including any Company Material Contractamendments or other modifications thereto), which copies are correct and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, complete in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectall material respects.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. (a) Section 4.18(a) 5.12 of the Company Disclosure Schedule Memorandum sets forth a true and complete list, as of the date of this Agreement, all of the following Contracts to which the Company Seller or any of its the Subsidiaries is a party or by which it is bound and which relate to the Company Business or the Purchased Assets, other than any of its Subsidiaries is bound:Excluded Contracts (collectively, the “Material Contracts”):
(i) Contracts with any “material contract” (as such term is defined in Item 601(b)(10) Affiliate or current or former officer, director, stockholder or Affiliate of Regulation S-K Seller or any of the SEC) Subsidiaries or any Contract that is loan officer, Affiliate of any loan officer, agent, broker or sales representative of Seller or any of the type Subsidiaries that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actare currently in effect;
(ii) Contracts with any labor union or association representing any employees of Seller or any of the Subsidiaries;
(iii) Contracts for the sale of any of the assets of Seller or any of the Subsidiaries or for the grant to any Person of any preferential rights to purchase any of its assets other than in the Ordinary Course of Business and not material in amount in the aggregate;
(iv) Contracts for joint ventures, strategic alliances or partnerships or other Contract that (however named) involving a sharing of profits, losses, costs or Liabilities by Seller or any Subsidiary with any other Person;
(v) Contracts prohibiting or limiting the ability of Seller to (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or business, (B) obligates compete with, obtain products or services from, or provide services or products to, any Person, (C) carry on or expand the Company nature or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness geographical scope of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth Business anywhere in the capital expenditure budget set forth on Section 6.1(hworld or (D) of the Company Disclosure Schedule and acquisitions or dispositions of inventory disclose any confidential information in the ordinary course possession of business) or business Seller (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material not otherwise generally available to the Company or any of its Subsidiariespublic);
(vi) Contracts relating to the acquisition by Seller or any joint venture, partnership, limited liability company of the Subsidiaries of any operating business or strategic alliance agreement or the capital stock of any other similar Contract with a third partyperson;
(vii) Contracts relating to incurrence, assumption or guarantee of any Contract that obligates the Company indebtedness in excess of $100,000 or imposing a Lien on any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personassets;
(viii) any Contract Contracts involving (A) granting the Company leases by Seller from or one to any other Person of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) tangible personal property or real property or (B) permitting any third person to usepurchases or sales by Seller of materials, enforce supplies, equipment or register any material Intellectual Propertyservices and which, including any material license agreements in the case of clauses (other than customary non-exclusive licensing provisions included in customer, supplier, A) and co-packing agreements(B), coexistence agreements and covenants not to ▇▇▇calls for future payments in excess of $25,000 in any year;
(ix) Contracts under which the Seller or any Contract that is expected of the Subsidiaries has made advances or loans to result any other Person other than (A) intercompany loans and (B) loans and advances made in the payment or receipt Ordinary Course of more than $30,000,000 by the Company and its Subsidiaries in 2016Business;
(x) any Contract relating to Contracts providing for severance, retention, change in control or similar payments;
(xi) Contracts for the supply employment (including “at will” employment) of any item used individual on a full-time, part-time or consulting or other basis providing annual compensation in excess of $100,000;
(xii) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by Seller or any of the Company Subsidiaries, other than master loan purchase agreements to which Seller or any Subsidiary is a party;
(xiii) Contracts (or a Subsidiary group of related contracts) which involve the Company that is a sole source expenditure of supply of more than $50,000 annually or $100,000 in the aggregate or require performance by any raw material, component or service that is material to party more than one year from the Company and its Subsidiaries, taken as a wholedate hereof; and
(xixiv) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, that are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior otherwise material to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this AgreementBusiness.
(b) Each of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of Seller and/or a Subsidiary, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Company Seller nor any Subsidiary of the Company is in breach of or material default under the terms of any Company Material Contract andContract, nor, to the knowledge Knowledge of the CompanyParent and Knowledge of Seller, no is any other party to any Company Material Contract is in breach of or material default under the terms of any Company Material Contractthereunder, in any material respect. No 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 the giving of notice or both would constitute a breach of or material default under the terms of any Company Material Contract, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectthereunder. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other No party to any Company of the Material Contract Contracts has exercised any termination rights with respect thereto. Seller and the Subsidiaries have the right to, and will at the Closing, assign the Material Contracts to terminate for default, convenience Purchaser. Seller has delivered or otherwise any Company Material Contractmade available to Purchaser true, nor to the knowledge correct and complete copies of all of the CompanyMaterial Contracts, is any such party threatening to do sotogether with all amendments, in each case except as has not had and would not reasonably be expected to have, individually modifications or in the aggregate, a Company Material Adverse Effectsupplements thereto.
(c) Since January None of the Purchased Contracts contains any restrictions prohibiting or limiting the ability of Seller (or Purchaser following the Closing) to (1) engage in any line of business, 2016 (2) compete with, obtain products or services from, or provide services or products to, any Person, (3) carry on or expand the nature or geographical scope of the Business anywhere in the world, (4) disclose any confidential information in the possession of Seller (and not otherwise generally available to the date hereof, no Top Supplier public) or Top Customer has canceled, terminated or substantially curtailed its relationship (5) enter into any Contract 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 foregoingother Person.
Appears in 1 contract
Sources: Asset Purchase Agreement (New York Mortgage Trust Inc)
Material Contracts. (a) Except for any Mineral Property, oil and gas lease, top-lease, ratification of lease, lease extension, lease ratification or lease joinder, pooling agreement, production sharing agreement, allocation agreement, unitization agreement or similar instrument burdening or constituting the chain of title to any Mineral Property, Section 4.18(a) 4.18 of the Company Disclosure Schedule Letter sets forth a true and complete list, as of the date of this Agreement, of the following Contracts contracts to or by which the Company or any of its Subsidiaries is a party or by is bound as of the date of this Agreement (other than the contracts listed in clause (i) below, which the Company or any of its Subsidiaries is bound:are not required to be listed thereon):
(i) any each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act);
(ii) any Contract each contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties (Aexcluding Mineral Properties) imposes any restriction on with respect to which the right or ability of Company reasonably expects that the Company, any of Company and its Subsidiaries will make annual payments in excess of $2,000,000 or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount aggregate payments in excess of $10,000,000;
(viii) any Contract each contract that provides constitutes a commitment relating to Indebtedness for borrowed money or the acquisition or disposition deferred purchase price of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether property by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $10,000,000, other than agreements solely between or among the Company and its Subsidiaries;
(iv) each contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that, following the Closing, by virtue of Parent becoming an Affiliate of the Company as a result of the Transactions, would by its terms materially restrict the ability of Parent or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area during any period of time after the Closing;
(v) each contract involving the acquisition or sale of (or option to purchase or sell) any Mineral Properties with a purchase price in excess of $20,000,000, other than (1) the granting or entering into in the ordinary course of business of any Mineral Properties, oil and gas lease, top-lease, ratification of lease, lease extension, lease ratification or lease joinder, pooling agreement, production sharing agreement, allocation agreement, unitization agreement or similar instrument with respect to Mineral Properties, (2) contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business or (3) contracts related to an acquisition or sale that was completed prior to December 31, 2023 and do not contain any material surviving obligations of any party thereto;
(vi) each contract for any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third partyDerivative Transaction;
(vii) each partnership, joint venture or limited liability company agreement;
(viii) each collective bargaining agreement to which the Company is a party or is subject;
(ix) any Contract contract the primary purpose thereof is or was to indemnify another Person;
(x) any contract with a Related Party of the Company with respect to which the Company reasonably expects that the Company and its Subsidiaries will make aggregate payments in excess of $120,000 or grants any material right to such Related Party;
(xi) any contract that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, for a term of greater than one (1) year;
(xii) each contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract contingent aggregate annual expenditures that is can reasonably be expected to result in the payment or receipt excess of more than $30,000,000 by the Company and its Subsidiaries in 20162,000,000;
(xxiii) any Contract relating to the supply of any item used by each agreement under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees or consultants, or to any other person with a Subsidiary principal amount in excess of $120,000; and
(xiv) each agreement that contains any “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal, in each case other than those contained in any agreement in which such provision is included in an oil and gas lease of any Mineral Properties or solely for the benefit of the Company that or any of its Subsidiaries, to which the Company or any of its Subsidiaries or any of their respective Affiliates is a sole source of supply of any raw materialsubject, component or service that and is material to the business of the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither Collectively (but excluding any Mineral Property, oil and gas lease, top-lease, ratification of lease, lease extension, lease ratification or lease joinder, pooling agreement, production sharing agreement, allocation agreement, unitization agreement or similar instrument burdening or constituting the Company nor any Subsidiary chain of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party title to any Mineral Property), the contracts set forth in Section 4.18(a) are herein referred to as the “Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 Contracts.” Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each , each Company Material Contract is a valid legal, valid, binding and binding obligation of enforceable in accordance with its terms on the Company or the Subsidiary and each of the Company its Subsidiaries that is a party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, subject, as to enforceability, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except Creditors’ Rights. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with neither the Company nor any of its Subsidiaries is in breach or default under 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, orContract nor, to the knowledge of the Company, threatened is any other party to do any of the foregoingsuch Company Contract in breach or default thereunder.
Appears in 1 contract
Material Contracts. (a) Section 4.18(aSchedule 3.13(a) of the Company Disclosure Schedule sets forth a true true, correct and complete list, as list of the date of this Agreement, all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any is bound as of its Subsidiaries is bound:the date hereof (each, a “Material Contract”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) Contract for the purchase, acquisition or sale of Regulation S-K materials, goods, services, equipment or other assets providing for annual payments made by or to the Company of the SEC) $50,000 or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Actmore;
(ii) any Contract that entitles the Company to receive an amount in cash, goods, services or materials of $50,000 or more during the twelve (12) month period ending on the Balance Sheet Date;
(iii) any Contract (A) imposes limiting in any restriction on respect the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates Company to engage in any line of business or business, to compete with any Person in any geographic area) line of business, or the manner or locations in which any of them may engage or hire or solicit any Person for employment or other business relationship, or (B) obligates prohibiting or limiting the right of the Company to make, sell or its Subsidiaries (distribute any products or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementservices;
(iv) any agreement relating to Indebtedness Contract for the sale of any of the assets or properties of the Company or for the grant to any Person of its Subsidiaries having an outstanding principal amount any preferential rights to purchase any such assets or properties, in excess each case, other than in the ordinary course of $10,000,000business;
(v) any Contract that provides for the acquisition in which any Company is a party in a joint venture, strategic alliance, or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions general or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiarieslimited partnership;
(vi) any joint ventureContract relating to the acquisition (by merger, partnership, limited liability company purchase of stock or strategic alliance agreement assets or otherwise) by the Company of any operating business or material assets or the capital stock of any other similar Contract with a third partyPerson;
(vii) any Contract that obligates relating to the Company incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of its Subsidiaries to make any loansthe material assets or properties of the Company, advances or capital contributions to, or investments in, any personincluding the Payoff Letters;
(viii) any Contract (A) granting pursuant to which the Company or one leases any portion of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual the Leased Real Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016Personal Property Lease;
(x) any Contract relating to for the supply employment of any item used by the Company executive officer, director or a Subsidiary employee of the Company that is a sole source of supply and any Contract for engagement of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andConsultant;
(xi) any Contract providing for severance or other termination or change of control payments, or termination or change of control benefits, to any executive officer, director or employee of the Company;
(xii) any collective bargaining agreement or other Contract with any Top Supplier labor organization, union, works council or Top similar organization, group of employees or any collective bargaining representative;
(xiii) any settlement, conciliation or similar agreement with any Person or Governmental Authority;
(xiv) any IP Licenses;
(xv) any Contract for capital expenditures or the acquisition or construction of fixed assets;
(xvi) any Contract with a Key Vendor;
(xvii) any Contract with a Key Customer;
(xviii) any sales agency, other thansales representation, reseller, distributorship, dealer, broker, franchise or similar Contract;
(xix) any Contract with (A) a “key man” provision, requirement or similar provision or that otherwise provides a Person with any rights in the case event that a particular Person ceases to provide services under such Contract or remain employed or engaged by the Company, (B) a most favored nation, favored customer, or similar provision, (C) exclusivity obligation or (D) minimum purchase, service level guarantees, guaranteed payments or obligations or similar provisions;
(xx) any Contract that requires the Company to indemnify any Person (excluding indemnities contained in agreements for the purchase, sale or license of each Top Supplier and each Top Customers identified products or services entered into in Section 4.18(a)(xi)(Athe ordinary course of business);
(xxi) any Contract or plan (including any equity incentive plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any equity interests (including phantom equity) of the Company Disclosure Scheduleor any options, Contracts thatwarrants, in the aggregateconvertible notes or other rights to purchase or otherwise acquire any such securities or options, do not represent purchases warrants or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses other rights therefor; and
(ixxii) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior any other Contract that is material to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this AgreementCompany.
(b) (i) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract andnor, to the knowledge Company’s Knowledge, any Seller has received any notice of any default or event that (with due notice or lapse of time or both) would constitute a default by the Company, no other party to Company under any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No and no event has occurred that, with 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 without notice or the lapse of time time, or both both, would constitute a breach of or material default by the Company under the terms of any Company Material Contract, in (ii) each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a legal, 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. There are effect (except to the extent subject to, and limited by, applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the enforcement of creditors’ rights generally and general equitable principles) and (iii) to the Company’s Knowledge, no disputes pending other party to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach of or in default under any Material Contract, (iv) no party to any Material Contract has exercised or, to the knowledge of the Company’s Knowledge, threatened to exercise, any termination rights with respect to any Company such Material Contract, (v) no party to any Material Contract has threatened to breach or adversely modify any Material Contract, and neither the (vi) no party to any Material Contract has provided notice that such party does not intend to renew any Material Contract. The Company nor has in all material respects performed all obligations required to be performed by it to date under each Material Contract and is not in default or breach of any Material Contract (with due notice or lapse of time or both). The Company has not assigned, delegated or otherwise transferred to any Person any of its Subsidiaries has received rights, title or interest under any written notice of the intention of any other party to any Company Material Contract to terminate for defaultwhich it is a party. The Company has made available to Purchaser true, convenience or otherwise any Company Material Contract, nor to the knowledge correct and complete copies of each of the CompanyMaterial Contracts set forth on Schedule 3.13(a) of the Disclosure Schedule, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effecttogether with all amendments thereto.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice The services provided to the Company or any Subsidiary of under its Advertiser Agreement with ironSource Mobile Ltd., dated August 25, 2021 have never included the Company of any intention channel referred to canceltherein as “IronSource Aura” and, terminate or substantially curtail its relationship therefore, the exclusivity covenant contained in such agreement with respect to the Company or any Subsidiary of IronSource Aura services is not applicable to the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 1 contract
Material Contracts. (a) Section 4.18(a) Except as filed as an exhibit to the Company SEC Reports filed before the date of this Agreement or as set forth in SECTION 2.14 of the Company Disclosure Schedule sets forth Schedule, neither the Company nor any of its subsidiaries is a true and complete list, as of the date of this Agreement, of the following Contracts party to or bound by any:
(i) employment agreement pursuant to which an employee is entitled to receive a base salary in excess of $100,000 per year (other than those that are terminable at will by the Company or such subsidiary without cost, payment or penalty);
(ii) contract, whether as licensor or licensee, for the license of any patent, know-how, trademark, trade name, service mark, copyright or other intangible asset that provides for paym▇▇▇▇ by or to the Company or such subsidiary in excess of $100,000 per year (other than licenses of commercial off-the-shelf computer software);
(iii) loan or guaranty agreement, indenture or other instrument, contract or agreement under which in excess of $100,000 has been borrowed or loaned or any note, bond or other evidence of indebtedness in excess of $100,000 has been issued, other than guarantees by the Company of real property leases of certain of its subsidiaries;
(iv) mortgage, security agreement, conditional sales contract, capital lease or similar agreement with total payments in excess of $100,000 per year or that effectively creates a lien, encumbrance or security interest on any material assets of the Company or any of its Subsidiaries is a party or by which subsidiaries;
(v) contract restricting the Company or any of its Subsidiaries is bound:subsidiaries in any material respect from engaging in business or from competing with any other parties, including, but not limited to, geographic limitations on the Company's or any of its subsidiaries' activities;
(ivi) written agreement relating to the reorganization or merger of the Company or any “subsidiary that has not been consummated as of the date hereof;
(vii) material partnership or joint venture agreement;
(viii) collective bargaining agreement;
(ix) contract that is a "material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Securities Act);
(iix) any Contract that (A) imposes any restriction on the right restaurant services, management, royalty or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete similar agreement with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates total payments by the Company or any subsidiary in excess of $100,000 per year, other than intercompany agreements among the Company and/or one or more of its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightssubsidiaries;
(iiixi) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement agreements relating to Indebtedness the acquisition of any material assets or relating to the merger or consolidation of the Company or any of its Subsidiaries having an subsidiaries with any other entity that have (A) not been consummated as of the date hereof or (B) that, if consummated as of the date hereof, have any remaining outstanding principal amount monetary obligations in excess of $10,000,000100,000;
(vxii) any Contract that provides for the acquisition or disposition investment banking agreement of any assets kind or nature whatsoever;
(xiii) other contracts (other than obligations set forth those listed in CLAUSES (i) through (xii) above)
(A) with a term longer than one (1) year from the capital expenditure budget set forth on Section 6.1(h) of date hereof that involve payments by the Company Disclosure Schedule and acquisitions or dispositions and/or any of inventory its subsidiaries in the ordinary course excess of business$100,000 per year; or
(B) or business with a term less than one (whether by merger, sale of stock, sale of assets or otherwise1) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of year from the date hereof that involve payments by the Company and/or any of this Agreement its subsidiaries in excess of $200,000, that are material to not terminable without premium or penalty on less than 30 days' notice;
(xiv) agreements or insurance policies providing for indemnification of any officer or director of the Company or any of its Subsidiaries;subsidiaries, other than the existing directors' and officers' insurance policy and the Certificate of Incorporation and Bylaws or other organizational documents, as currently in effect, of the Company and each of its subsidiaries; or
(vixv) agreements evidencing a loan to any joint venture, partnership, limited liability company officer or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates director of the Company or any of its Subsidiaries subsidiaries, other than advances for expenses pursuant to make any loansthe Company's standard expense reimbursement policies. All of the foregoing, advances or capital contributions to, or investments intogether with the Company Leases, any person;
(viii) any Contract (A) granting the material agreements related to Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) aboveFranchise Agreements, are referred to herein as “Company Material Contractscollectively called "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) All such Company Material Contracts are in full force and effect and are valid and binding obligations of the Company or its subsidiaries and enforceable against the Company or its subsidiaries in accordance with their respective terms, subject to the Enforceability Exceptions. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract andits subsidiaries nor, to the knowledge of the Company, no any other party to any Company Material Contract is in breach of or in default under any of the terms of any Company Material ContractContracts, in any material respect. No event has occurred except for such breaches 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, defaults 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 has have not had and would could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each True and complete copies of all written Company Material Contract is a valid Contracts and binding obligation true and correct summaries 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any all oral Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party Contracts have been delivered or made available to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectPurchaser.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Merger Agreement (Lone Star Steakhouse & Saloon Inc)
Material Contracts. Schedule 2.10 hereto sets forth, as of this Agreement, a list of all of the following contracts and agreements for the Company:
(a) Section 4.18(a) of contracts or leases with respect to which the Company Disclosure Schedule sets forth or the other party thereto has a true stated obligation of more than $250,000 within the 12 month period from and complete list, as of after the date of this Agreement, other than normal and routine open purchase orders entered into in the ordinary course of business for (i) the following Contracts to which purchase of raw materials or supplies used in the manufacture of products of the Company or any of its Subsidiaries is a party or by which (ii) services provided to the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany;
(iib) contracts relating to the borrowing of money, or the guaranty of any Contract that (A) imposes obligation for the borrowing of money, including any restriction indenture, mortgage, promissory note, loan agreement or other agreement or commitment for the borrowing of money, for a line of credit or for any capital leases or imposing a Lien, other than Permitted Liens, on the right or ability any assets of the Company;
(c) contracts which place any material limitation on the operation of the Company’s business, any of its Subsidiaries such as agreements with non-solicitation, non-compete, exclusivity or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsprovisions;
(iiid) any collective bargaining agreementemployment, labor union contract or trade union agreement (eachbonus, a “Collective Bargaining Agreement”) or other works council agreementseverance, retention and deferred compensation agreements;
(ive) material contracts or agreements with any agreement consultant, advisor or agent of the Company;
(f) contracts with any labor union or association relating to Indebtedness employees of the Company, or collective bargaining agreements, including amendments and side letter agreements thereto;
(g) contracts with any (i) current officer, director, or Affiliate of the Company or (ii) former officer, director, or Affiliate of the Company pursuant to which the Company has any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000continuing obligation;
(vh) distribution and reseller agreements;
(i) research and development agreements;
(j) contracts with Governmental Authorities;
(k) franchise, partnership and joint venture agreements (including any Contract that provides agreement providing for the acquisition sharing of profits, losses, costs or disposition liability by the Company with any other Person);
(l) contracts with respect to mergers or acquisitions of any assets operating business or the capital stock of any other Person by the Company;
(m) material licensing agreements or other than obligations set forth material contracts or agreements with respect to Intellectual Property, including material contracts or agreements with current employees, consultants or contractors regarding the appropriation or the non-disclosure of any Intellectual Property, except for licenses which relate to off-the-shelf, commercially available computer software and non-disclosure agreements executed in the capital expenditure budget set forth on Section 6.1(hordinary course of business by employees of or consultants to the Company;
(n) contracts under which the Company has made material advances or material loans to any other Person, except advancements of reimbursable ordinary and necessary business expenses made to directors, officers and employees of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business;
(o) agreements requiring indemnification by the Company (other than indemnification provisions contained in agreements entered into in the ordinary course of business);
(p) contracts requiring the Company to purchase all or business substantially all of its requirements of a particular product from a supplier, except any contract or agreement entered into in the ordinary course of business;
(whether by mergerq) settlements, sale conciliations or similar agreements, the performance of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent which will involve payment obligations) outstanding as of after the execution date of this Agreement that are material to for consideration in excess of $250,000 or governmental monitoring, consent decree or reporting responsibilities outside the Company or any ordinary course of its Subsidiariesbusiness;
(vir) any joint venturecontracts, partnership, limited liability company agreements or strategic alliance agreement arrangements for capital expenditures or other similar Contract with a third party;
(vii) any Contract that obligates the Company acquisition or any construction of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one fixed assets in excess of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole250,000; and
(xis) any Contract with any Top Supplier or Top Customer, other than, to the extent not otherwise listed on Schedule 2.10 in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) response to another of the Company Disclosure Scheduleforegoing subsections, Contracts that, in contracts with the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customercustomers and vendors listed on Schedule 2.15. All contracts of the types referred to in clauses (i) through (xi) above, foregoing contracts and the Leases are sometimes collectively referred to herein as the “Company Material Contracts.” ”. The Company has made available to Parent prior the Buyer true, correct and complete copies of all written Material Contracts, together with all amendments, modifications or supplements thereto. The Company has made available to the date of this Agreement Seller a complete and correct copy written summary of each Company oral Material Contract as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Contract. Each Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is (i) a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge Knowledge of the Company, a valid and binding obligation of each other party thereto, and (ii) is in full force and effect. There are no disputes pending orThe Company and, to the knowledge Knowledge of the Company, threatened with respect to each other party thereto has performed its material obligations required thereunder as of the date hereof. The Company is not in default under any Company material provision of any Material Contract, and neither . To the Company nor any of its Subsidiaries has received any written notice Knowledge of the intention Company, no third party is in default under any material provision of any Material Contract. Except as set forth on Schedule 2.5, the Transactions will not afford any other party to any Company a Material Contract the right to terminate for default, convenience or otherwise any Company such Material Contract. As to each Material Contract, nor to there has not occurred any event or events that, with the knowledge lapse of time or the Companygiving of notice or both, is any such party threatening to do sowould constitute a default by the Company thereunder, in each case except as has not had set forth on Schedule 2.5 and except for defaults that would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect.
(c) Since January 1, 2016 to . To the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary Knowledge of the Company, given notice no party to the Company any Material Contract has exercised 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 exercise any of the foregoingtermination rights with respect thereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (TreeHouse Foods, Inc.)
Material Contracts. (a) Section 4.18(a3.17(a) of the Company Disclosure Schedule sets forth a true and complete list, Letter lists the following respective Contracts (other than any Company Plan) in effect as of the date of this Agreement, of the following Contracts Agreement (including all material amendments and supplements) to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which (provided, however, that the Company or Material Contracts will be deemed to include, without requirement of listing, any “material contract” (as such term is used in Item 601(b)(10) of its Subsidiaries Regulation S-K of the SEC) that is bound:
(ifiled as an exhibit to the Company Reports filed with the SEC prior to the date of this Agreement, other than any Company Plan), such Contracts as are required to be set forth in Section 3.17(a) of the Company Disclosure Letter, any Company Real Property Lease, and any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) collectively being, the “Company Material Contracts”:
(i) all Contracts (excluding purchase orders issued in the ordinary course of business) for purchases by the Company or any Contract that is of the type that would be required to be disclosed under Item 404(a) Company Subsidiaries in excess of Regulation S$15,000,000 during the 12-K promulgated under the Exchange Actmonth period ended December 31, 2018;
(ii) any Contract that all Contracts (Aexcluding purchase orders issued in the ordinary course of business) imposes any restriction on the right involving a customer or ability of the Companya distributor and providing for payments to, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates receipts by, the Company or its any of the Company Subsidiaries (or following in excess of $15,000,000 during the Effective Time12-month period ended December 31, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights2018;
(iii) all Contracts to which any collective bargaining agreementGovernmental Authority is a party entered into since December 31, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement2016;
(iv) any agreement relating all Contracts that (i) materially limit or purport to Indebtedness materially limit the ability of the Company or any Company Subsidiary, or, upon the consummation of the Merger, Parent or any Subsidiary of Parent (a “Parent Subsidiary”), to compete with any Person, in any line of business, market or field, or develop, sell, supply, manufacture, market, distribute, or support any material product or service, in each case, in any geographic area or during any period of time or (ii) subject the Company or any Company Subsidiary or Parent or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000to any material “most-favored nation” right;
(v) any Contract that provides providing for the disposition or acquisition by the Company or disposition any Company Subsidiary directly or indirectly (by merger, license or otherwise) of any assets or equity ownership interests for consideration in excess of $15,000,000 (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of businessbusiness consistent with past practice) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities containing material “earn-out” provisions or other obligations (including “earnout” or other material contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts in excess of $1,000,000 relating to Indebtedness, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Company Subsidiaries, in each case, in the ordinary course of business consistent with past practice;
(vii) all Contracts establishing or otherwise providing for revenue, cost or profit-sharing joint venture, ventures (whether in partnership, limited liability company or strategic alliance agreement or other similar Contract with a third partyorganizational form);
(viiviii) all Contracts (excluding licenses for commercially available computer components or software that are generally available on nondiscriminatory pricing terms) under which the Company or any Company Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any Patents) with respect to any Intellectual Property of a Third Party embodied in or necessary for the use of any Company Product and which Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(ix) all material Contracts (excluding non-exclusive licenses relating to sales, testing and evaluation of Company Products in the ordinary course of business or licenses for commercially available computer components or software that are generally available on nondiscriminatory pricing terms) under which the Company or any Company Subsidiary has granted to a Third Party any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any Patents) with respect to any material Intellectual Property of the Company or any Company Subsidiary;
(x) all Contracts entered into since December 31, 2016, in connection with the settlement or other resolution of any Action that has any material continuing obligation (other than confidentiality obligations), liability or restriction on the part of the Company or the Company Subsidiaries;
(xi) any Contract for capital expenditures requiring future payments by the Company or the Company Subsidiaries in excess of $15,000,000 with respect to any project or series of projects;
(xii) any Contract that obligates contains any provisions requiring the Company or any Company Subsidiary to indemnify any other party (excluding indemnities contained in agreements in connection with the purchase, sale or license of its Subsidiaries Company Products or indemnities in connection with receipt of products or services from vendors in the ordinary course of business), which indemnity is material to make the Company and the Company Subsidiaries, taken as a whole;
(xiii) any loansContract under which the Company or any Company Subsidiary has, advances directly or indirectly, made any advance, loan, extension of credit or capital contributions contribution to, or investments in, other investment in any person;Person in excess of $1,000,000; and
(viiixiv) any Contract (A) granting restricting or otherwise relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any Company Securities or (C) providing the Company or one any of its the Company Subsidiaries with any right of first refusal with respect to, or right to use purchase or otherwise acquire, any material Intellectual Property (securities, other than licenses in with respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 investments by the Company and its Subsidiaries in 2016;an amount less than $5,000,000 in any Person.
(xb) any Contract relating Except as would not reasonably be expected to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is be material to the Company and its the Company Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 is a legal, valid and binding agreement and, to the knowledge of the Company, is in full force and effect and enforceable in accordance with its terms (except that (A) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally, and (B) 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). Except as in effect on the date of this Agreement.
(b) Neither would not reasonably be expected to be material to the Company nor and the Company Subsidiaries, as a whole, (i) the Company or the Company Subsidiary, as applicable, is not in default under any Subsidiary Company Material Contract, has not committed or failed to perform any act that, and no circumstances exist and no event has occurred that, with or without notice, lapse of time, or both, would constitute a default under or would result in the acceleration of any obligation or loss of a benefit of the Company is or a Company Subsidiary pursuant to, result in breach the creation of a Lien on any property or default under asset of the terms Company or any Company Subsidiary pursuant to, or give rise to a right of any termination or cancellation pursuant to the Company Material Contract and, and (ii) to the knowledge of the Company, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, any Company Material Contract. The Company has made available to Parent true and complete copies of all Company Material Contracts, in including any material respect. 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 has not had amendments and 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 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 supplements thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Merger Agreement (Nvidia Corp)
Material Contracts. (a) Section 4.18(aSchedule 5.12(a) of the Company Disclosure Schedule sets forth a true and complete list, as list of the date of this Agreement, all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company it or any of its Subsidiaries assets or properties is boundbound as of the date hereof (collectively and together with those Contracts set forth on Schedules 5.10(a) and Schedules 5.11(j) and 5.11(k), the “Material Contracts”), organized under a header for each subsection:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any each Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) association representing any agreement relating to Indebtedness employee of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(viii) each Contract relating to the sale of goods, or the provision of any services by, the Company or any of its Subsidiaries, other than the sale or provision of goods and services in the Ordinary Course of Business, for consideration in excess of $400,000 or the equivalent in other currencies during the twelve-month period ending on September 30, 2010;
(iii) each Contract relating to the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line or the capital stock of any other Person since January 1, 2007, in each case pursuant to which any earn-outs or deferred, contingent purchase price or indemnification obligations of the Company or its Subsidiaries remain outstanding;
(iv) each Contract providing for the incurrence of outstanding Indebtedness as of the date hereof or the making of any outstanding loans as of the date hereof (other than routine advances to employees for business expenses in the Ordinary Course of Business in an amount not exceeding $50,000 to any individual employee), and all agreements under which the Company or any of its Subsidiaries are obligated to make any investment (in the form of a loan, capital contribution or otherwise) in any other Person;
(v) each Contract creating or governing a joint venture, partnership, limited liability company partnership or strategic alliance agreement or other similar Contract with a third partyarrangement;
(viivi) each Contract (A) containing a covenant expressly limiting in any Contract material respect the freedom of the Company or any of its Subsidiaries (or that obligates would limit in any material respect the freedom of Parent, the Surviving Corporation and their respective Subsidiaries after the Closing) to engage in any business with any Person or in any geographic area or to compete with any Person, (B) expressly limiting in any material respect the ability of the Company or any of its Subsidiaries to make incur indebtedness for borrowed money, (C) obligating the Company or any loans, advances of its Subsidiaries to purchase or capital contributions tootherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, or investments (D) containing any provision that grants any Person a right of first refusal, first offer or similar right to purchase any right, asset or property of, or equity interest in, the Company or its Subsidiaries;
(vii) each Contract creating a Lien (other than Permitted Liens) upon any personassets of the Company or any of its Subsidiaries, other than purchase money security interests in connection with the acquisition of equipment in the Ordinary Course of Business;
(viii) each Contract reflecting a settlement of any Contract threatened or pending Legal Proceedings, other than (A) granting the Company releases entered into with former employees or one independent contractors of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken on an individual (and not class or collective basis), in the Ordinary Course of Business in connection with the routine cessation of such employee’s or independent contractor’s employment with the Company and its Subsidiaries, (B) settlement agreements for cash and/or the provision of products and/or services only (which have been paid or provided) and the value of which does not exceed $100,000 as a wholeto each such settlement or (C) settlement agreements entered into more than three (3) years prior to the date of this Agreement under which none of the Company or its Subsidiaries has any continuing material obligations, liabilities or rights (excluding releases);
(ix) all operating leases (as lessor or lessee) of tangible personal property (other than any such lease calling for payments of less than $25,000 per year); and
(xix) any each material Contract with any Top Supplier or Top Customer, Governmental Body;
(xi) each other than, Contract not entered into in the case Ordinary Course of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) Business that involved expenses of the Company Disclosure Schedule, Contracts that, and its Subsidiaries of more than $400,000 or the equivalent in other currencies in the aggregateaggregate during the twelve-month period ending on September 30, do not represent purchases 2010.
(b) True and correct copies of each Material Contract (including all amendments or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (imodifications thereto) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has have been made available to Parent prior to the date of this Agreement a complete and correct copy of each Company hereof. Each Material Contract as in effect on the date of this Agreement.
is (bi) Neither the Company nor any Subsidiary a valid and binding agreement of the Company is in breach of or default under a Subsidiary, as the terms of any Company Material Contract case may be, and, to the knowledge Company’s Knowledge, the other parties thereto, and (ii) is in full force and effect and is enforceable in accordance with its terms, except to the extent any Material Contract terminates in accordance with its terms after the date hereof and prior to the Closing (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). The Company or a Subsidiary and, to the Knowledge of the Company, no each of the other party to any Company Material Contract is parties thereto, are not in breach of, default or violation under, any of or default under the terms of any Company Material Contract, in any material respect. No such Contracts 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 time, or both both, would constitute such a breach of breach, default or default under the terms of violation, except for any Company Material Contractsuch breaches, in each case except as has not had and defaults or violations that would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither Neither the Company nor any of its Subsidiaries Subsidiary has received any written notice of any termination, default or event that with notice or lapse of time, or both, would constitute a default by the intention of Company and its Subsidiaries under any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Material Contracts. (a) Section 4.18(aSchedule 3.10(a) of the Company Disclosure Schedule Schedules sets forth a true an accurate and complete list, as list of the date of this Agreement, each of the following Contracts contracts to which the Company or any of its Subsidiaries is a party or by which any assets of the Company or any of its Subsidiaries is bound:are bound (collectively, “Material Contracts”):
(i1) any “material contract” contract with the top ten (as such term is defined in Item 601(b)(1010) of Regulation S-K customers of the SECCompany as measured by revenue generated during the year ended December 31, 2024 and for the three (3) month period ended March 31, 2025 (each, a “Material Customer”), other than purchase orders entered into in the ordinary course of business (including standard terms and conditions incorporated in a purchase order by reference to another source) or any Contract that is standard terms and conditions governing the purchase contained on the Material Customer’s website or similar public available source and (2) samples of purchase orders with Material Customers entered into in the type that would be required to be disclosed under Item 404(a) ordinary course of Regulation S-K promulgated under the Exchange Actbusiness;
(ii1) any Contract that contract with the top ten (A10) imposes any restriction suppliers of the Company as measured by the dollar value of purchases during the year ended December 31, 2024 and for the three (3) month period ended March 31, 2025 (each, a “Material Supplier”), other than purchase orders entered into in the ordinary course of business (including standard terms and conditions incorporated in a purchase order by reference to another source) or standard terms and conditions governing the purchase contained on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights Material Supplier’s website or similar rightspublic available source and (2) samples of purchase orders with Material Suppliers entered into in the ordinary course of business;
(iii) any collective bargaining agreementbroker, labor union contract distributor, dealer, co-manufacturing, sales representative, manufacturer, sales promotion, market research, advertising or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementagency contract;
(iv) any agreement contract pursuant to which the Company is bound by any provisions or covenant (A) not to compete, (B) not to hire, (C) not to solicit, (D) not to acquire any equity securities (e.g., “standstill” provisions) or (E) that materially limits (or purports to materially limit) the manner in which the Company conducts its business (including any restrictions with respect to any Person, line of business, geographic area or period of time);
(v) any lease, sublease or similar contract with any Person pursuant to which the Company is a lessor, sublessor, lessee or sublessee of any tangible personal Initials ____ property, or any portion of Real Property (including the leased Real Property), material to the conduct and operation of the Company’s business, including the Leases;
(vi) any contract pursuant to which the Company has incurred any indebtedness (including guarantees);
(vii) all contracts for capital expenditures or the acquisition or construction of any fixed assets requiring the payment by the Company following the Closing of an amount in excess of $10,000;
(viii) any contract relating to Indebtedness mortgaging, pledging or otherwise placing a lien on any material portion of the assets of the Company;
(ix) any contract with any exclusivity, “most favored nation” provision or similar pricing terms;
(x) any contract pursuant to which the Company is required to indemnify or guaranty the obligations of any person outside of the ordinary course of business;
(xi) any contract relating to the settlement of any Legal Proceedings or a judgment involving the Company;
(xii) any contract for the sale of assets owned or leased by the Company (other than inventory sales in the ordinary course of business);
(xiii) any contract relating to any joint venture, strategic alliance, partnership or similar arrangement;
(xiv) any contract for the distribution, marketing, sales representation or similar arrangement under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for, any product, service or technology of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000respective affiliates that generated revenues to the Company, as applicable;
(vxv) any Contract that provides contracts for the acquisition employment of, the provision of consulting services by, any officer, or disposition the payment of severance to any individual employee or other natural person on a full time, part-time, consulting or other basis;
(xvi) contracts providing for the payment of any assets cash or other compensation or benefits as a result of the consummation of the transactions contemplated herein (either alone or in conjunction with any other event or condition), to which the Company is, or at Closing will be, a party;
(xvii) contracts which restrict the ability of the Company to terminate the employment of any employee (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(haccordance with applicable law) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations without liability (including “earnout” severance obligations not otherwise required by law); Initials ____
(xviii) all exchange traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contracts, or any other contingent payment obligationsinterest rate or foreign currency protection contracts;
(xix) outstanding as all contracts (other than contracts in respect of employment or employee compensation) between the date Company, on the one hand, and any senior officer, director, manager, equityholder, or affiliate of this Agreement that are material to the Company or any of its Subsidiariestheir affiliates, or their respective family members, on the other hand;
(vixx) all contracts with any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third partyGovernmental Body;
(viixxi) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any personall collective bargaining agreements;
(viiixxii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material all Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a wholeLicenses; and
(xixxiii) any Contract with any Top Supplier or Top Customercontract, other thannot otherwise identified above, pursuant to which the Company is currently obligated to make payments in the case excess of each Top Supplier and each Top Customers identified $25,000 per year.
(b) Except as set forth in Section 4.18(a)(xi)(ASchedule 3.10(b) of the Company Disclosure ScheduleSchedules, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a complete Buyer true and correct copy copies of each Company Material Contract as written contract set forth in effect on the date of this Agreement.
(bor required to have been set forth in) Neither the Company nor any Subsidiary Schedule 3.10(a) of the Company is Disclosure Schedules (including all written amendments, modifications and supplements thereto). All Material Contracts are valid, binding and in breach of or default under the terms of any Company Material Contract andfull force and effect, to the knowledge of and are enforceable against the Company, no and against the other party parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a Legal Proceeding at law or in equity). The Company has performed all obligations required to any Company Material Contract is in breach of or default be performed by it to date under the terms of any Company Material Contract, in any material respect. No event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, Contracts to the knowledge of the Company, through the action or inaction of any third which it is a party, that and it is not (with notice or without the lapse of time or both would constitute a the giving of notice, or both) in breach of or default under the terms of in any Company Material Contract, in each case except as has not had and would not reasonably be expected material respect thereunder. No other party to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company any Material Contract is a valid and binding obligation (with or without the lapse of the Company time or the Subsidiary giving of the Company that is party thereto andnotice, to the knowledge of the Company, of each other party thereto, and is or both) in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with breach or default in any material respect to under any Company Material Contract, and neither the . The Company nor any of its Subsidiaries has not received any written notice or oral notice of the intention of any other party to any Company a Material Contract to terminate for defaultor cancel any Material Contract prior to the expiration of the term thereof (including renewal terms), convenience or to amend or otherwise modify the material terms of any Company Material Contract nor does any party currently contemplate any such termination, cancellation, amendment or other modification to any Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Membership Interest Purchase Agreement (Healthy Extracts Inc.)
Material Contracts. (a) Section 4.18(a4.16(a) of the Company Disclosure Schedule sets forth contains a true and complete list, as of the date of this AgreementAgreement and excluding any Plan listed on Section 4.10(a) of the Company Disclosure Schedule, of each of the following types of currently in effect Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or by bound (such Contracts as are required to be set forth Section 4.16(a) of the Company Disclosure Schedule, being the “Material Contracts”):
(i) all Contracts with a Material Customer involving aggregate payments to the Company or any Company Subsidiary in excess of $1,000,000 per year;
(ii) all Contracts with a Material Supplier involving aggregate payments to the Company or any Company Subsidiary in excess of $500,000 per year;
(iii) all Contracts evidencing indebtedness for borrowed money and any pledge agreements, security agreements or other collateral agreements pursuant to which the Company or any of its Subsidiaries is bound:
(i) Company Subsidiary granted to any “material contract” (as such term is defined person a security interest in Item 601(b)(10) of Regulation S-K or lien on any of the SEC) property or assets of the Company or any Contract that is Company Subsidiary, and all agreements or instruments guarantying the debts or other obligations of any person, in each case, involving an amount (including the type that would be required to be disclosed under Item 404(aamount of any undrawn but available commitments thereunder) of Regulation S-K promulgated under the Exchange Actgreater than $500,000;
(iiiv) all co-broker, partnership, joint venture, strategic alliance, profit sharing, funding, or similar Contracts;
(v) all Contracts with any Contract Governmental Authority that involve payments by the Company or any Company Subsidiaries in excess of $500,000, in the aggregate, over any 12-month period;
(Avi) imposes any restriction on all Contracts that materially limit the right or ability of the Company, any of its Subsidiaries Company or any Affiliate of any of them Company Subsidiary to compete with any other person in any line of business or geographic region (with any person or that following the Effective Time will restrict the ability of Parent entity or its Affiliates to engage in any line of business or compete in any geographic areaarea or during any period of time, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(vii) all Contracts that result in any person or (B) obligates entity holding a power of attorney from the Company or its Subsidiaries (any Company Subsidiary that relates to the Company, any Company Subsidiary or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightstheir respective business;
(iiiviii) any collective bargaining agreement, labor union contract all leases or trade union agreement (each, master leases of personal property with annual payments of $500,000 or more in a “Collective Bargaining Agreement”) or other works council agreement12-month period;
(ivix) all Contracts that involve the license or grant of rights by the Company or any agreement relating Company Subsidiary to Indebtedness a third party of material Company-Owned IP other than (A) agreements with contractors of the Company or any Company Subsidiary to use Company-Owned IP to the extent necessary for such contractor’s performance of its Subsidiaries having services for the Company or any Company Subsidiary, (B) non-exclusive licenses granted to Company’s customers in the ordinary course, (C) non-disclosure agreements entered into in the ordinary course, or (D) non-exclusive licenses that are merely incidental to the transaction contemplated in such license, including contracts that include an outstanding principal amount in excess incidental license to use the trademarks of $10,000,000the Company for marketing or advertising purposes;
(vx) all Contracts under which the Company or any Contract Company Subsidiary has agreed to purchase goods or services from a vendor, Supplier or other person on a preferred supplier, or grant to any Person the right to purchase goods or services from the Company or any Company Subsidiary on, a “most favored supplier” basis;
(xi) all Contracts that provides for relate to the direct or indirect acquisition of any person or business or the disposition of any material assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business any Company Subsidiary (whether by merger, sale of stock, sale of assets or otherwise) in the last 12 months, in each case, involving payments of $500,000 or more, other than Contracts in which the applicable acquisition or disposition has been consummated and that contains representations, covenants, indemnities there are no material obligations ongoing;
(xii) all Contracts for a Company Interested Party Transaction; and
(xiii) all Contracts involving any resolution or other settlement of any actual or threatened Action which require payment in excess of $500,000 or impose continuing obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to on the Company or any of its Subsidiaries;Company Subsidiary, including injunctive or other non-monetary relief.
(vii) any joint ventureeach Material Contract is a legal, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates valid and binding obligation of the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available softwareas applicable) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, the other parties thereto, subject to the Remedies Exceptions, and neither the Company nor any Company Subsidiary is in breach or violation of, or default under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Company’s knowledge, no other party to any Company Material Contract is in breach of or violation of, or default under the terms of under, any Company Material Contract; and (iii) the Company and the Company Subsidiaries have not received any written, in any material respect. 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 oral notice or inaction claim of any third partysuch breach, that with notice or the lapse of time or both would constitute a breach of violation or default under the terms of any Company such Material Contract, in each case of the foregoing Section 4.16(b)(i) through (iii), except as has not had and for any such conflicts, breaches, defaults or other occurrences which would not reasonably be expected to have, individually or result in the aggregate, a Company Material Adverse Effect. Each The Company has made available to SPAC true and complete copies of all Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company Contracts, including any amendments thereto that is party thereto and, to the knowledge of the Company, of each other party thereto, and is are material in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectnature.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Business Combination Agreement (G Squared Ascend I Inc.)
Material Contracts. (a) Section 4.18(a) of the Company Disclosure Schedule sets forth a true The following agreements, contracts and complete list, as of the date of this Agreement, of the following Contracts commitments to which the Company or any of its Subsidiaries subsidiaries is a party or is bound are referred to herein, collectively, as the "Company Material Contracts":
(i) any employment or consulting agreement, contract or commitment with any executive officer or member of the Company Board, 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;
(ii) any agreement or plan, including (without limitation) any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty other than, in either case, as entered into in the ordinary course of business;
(iv) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any of its subsidiaries after the date of this Agreement of assets in excess of $250,000 not in the ordinary course of business or pursuant to which the Company or any of its Subsidiaries is bound:subsidiaries has any material ownership interest in any corporation, partnership, limited liability company, joint venture or other business enterprise other than the Company's subsidiaries;
(vi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(vii) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any product or service of the Company or any of its subsidiaries or any material agreement, contract or commitment currently in force to sell or distribute any products or services of the Company or any of its subsidiaries, including any material agreement, contract or commitment related to any Intellectual Property owned by the Company or any of its subsidiaries, except agreements with distributors or sales representative in the ordinary course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Acquiror;
(viii) any mortgage, indenture, guarantee, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit, other than accounts receivable and payable in the ordinary course of business;
(ix) any settlement agreement entered into during the five-year period preceding the date hereof;
(x) any other agreement, contract or commitment (i) any “in connection with or pursuant to which the Company and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current calendar year or during the next calendar year, (ii) the termination, expiration or loss of the other contracting party's performance of which would reasonably be expected to have a Company Material Adverse Effect or (iii) that is a material contract” contract (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;SEC rules); or
(iixi) any Contract that (A) imposes any restriction on the right agreement, contract or ability of the Company, any of its Subsidiaries or any Affiliate of any of them commitment currently in force to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates provide source code to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential for any product or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract technology that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are is material to the Company or any of its Subsidiaries;subsidiaries.
(vib) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary Section 5.20 of the Company that is Disclosure Schedule contains a sole source true and complete list of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified Material Contracts not set forth in Section 4.18(a)(xi)(A5.23(g) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has provided or 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) Neither the Company nor any Subsidiary to Acquiror. Each of the Company is and each of its subsidiaries has performed, in breach of or default all material respects, its obligations under the terms of any Company Material Contract and, Contracts to which it is a party to the extent such obligations to perform have accrued. To the knowledge of the Company, no the other party parties to any the Company Material Contract is Contracts have performed, in breach of or default under all material respects, their respective obligations thereunder. All the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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 Contracts are in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or effect in the aggregate, a Company Material Adverse Effectform provided or made available to Acquiror.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Merger Agreement (Friede John A)
Material Contracts. (a) Section 4.18(aSchedule 4.14(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, all of the following Contracts to which the Company or any of its the Company Subsidiaries is a party or by which any of them or their respective assets or properties are bound (collectively, the “Material Contracts”):
(i) Contracts with any Securityholder or Affiliate thereof or any current officer, director, stockholder or Affiliate of the Company or any of its Subsidiaries is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany Subsidiaries;
(ii) Contracts with any Contract that (A) imposes labor union or association representing any restriction on the right or ability employee of the Company, Company or any of its Subsidiaries or any Affiliate the Company Subsidiaries;
(iii) Contracts for the sale of any of them the assets of the Company or any of the Company Subsidiaries in an amount in excess of $100,000 other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any such assets;
(iv) Contracts for joint ventures, strategic alliances, partnerships, or sharing of profits;
(v) Contracts containing covenants of the Company or any of the Company Subsidiaries not to compete with any other person in any line of business or geographic region with any Person in any geographical area;
(vi) Contracts containing covenants of any other Person, including employees or that following independent contractors, not to compete with the Effective Time will restrict Company or any of the ability of Parent or its Affiliates to engage Company Subsidiaries in any line of business or compete in any geographic geographical area;
(vii) Contracts for the acquisition since January 1, 2009 (by merger, purchase of stock or (Bassets or otherwise) obligates by the Company or its any of the Company Subsidiaries (of any operating business or following material assets or the Effective Time, Parent capital stock or its Subsidiaries) to conduct business with membership interest of any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsother Person;
(iiiviii) except for capitalized leases entered into in the Ordinary Course of Business, Contracts relating to the incurrence, assumption or guarantee of any collective bargaining agreementIndebtedness in excess of $100,000 or imposing a Lien on any of the material assets of the Company or any Company Subsidiary (other than Permitted Liens), labor union contract including indentures, guarantees, loan or trade union agreement (eachcredit agreements, a “Collective Bargaining Agreement”) sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or other works council agreementconditional sale or title retention agreements;
(ivix) any agreement relating purchase Contracts giving rise to Indebtedness Liabilities of the Company or any of its the Company Subsidiaries having an outstanding principal amount in excess of $10,000,000300,000 in the aggregate in any fiscal year after the date hereof;
(vx) any Contract that provides Contracts providing for the acquisition payments by or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiariesthe Company Subsidiaries in excess of $500,000 in the aggregate in the current fiscal year or any fiscal year after the date hereof;
(vixi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) any Contract that obligates Contracts under which the Company or any of its the Company Subsidiaries to make any loans, has made advances or capital contributions toloans to any other Person (other than reasonable and documented advances made in the Ordinary Course of Business to directors, or investments inofficers, any personand employees for business expenses);
(viiixii) Contracts involving annual payments to or from the Company in excess of $100,000 per year that contain terms providing for Severance Obligations;
(xiii) Contracts for the employment of any Contract individual on a full time, part-time or other basis providing base annual compensation in excess of $100,000;
(Axiv) granting Contracts with independent contractors or consultants (or similar arrangements) providing for payments in excess of $250,000 per year;
(xv) Contracts with medical directors providing for payments in excess of $50,000 per year;
(xvi) outstanding Contracts (not otherwise required to be listed on Schedule 4.14(a) of guaranty, surety or indemnification, direct or indirect, by the Company or one any of its the Company Subsidiaries involving more than $100,000 in any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇fiscal year;
(ixxvii) Contracts with any vendor that provides billing and reimbursement services valued in excess of $50,000 during any year;
(xviii) any Contract insurance policy or agreement or undertaking by the Company or any Company Subsidiary providing for indemnification of any officer or director of the Company or any of the Company Subsidiaries, other than the Company’s or any Company Subsidiary’s certificate of incorporation or bylaws; and
(xix) any License or sublicense (whether as a licensor or a licensee) of any Intellectual Property or other intangible asset (excluding commercial off-the-shelf or shrink wrap software) that is expected to result in the provides for payment or receipt of $250,000 or more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreementper year.
(b) Each of the Material Contracts is in full force and effect and is legal, valid and binding against the Company or any Company Subsidiary that is party thereto, and, to the Knowledge of the Company, of the other parties thereto, enforceable against each of them in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). Neither the Company nor any Company Subsidiary of the Company is in breach of or material default under the terms of any Company Material Contract andContract, nor, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge Knowledge of the Company, is any such other party threatening to do soany Material Contract in material breach of or material default thereunder, in each case except as and no event has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship occurred that with the Company lapse of time or any Subsidiary the giving of notice or both would constitute a material breach or material default on the part of the Company, given notice any Company Subsidiary or, 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 Knowledge of the Company, or, any other party thereunder. No party to the knowledge of the Company, threatened to do any of the foregoingMaterial Contracts has exercised any termination rights with respect thereto, and no party has given written notice of any significant dispute with respect to any Material Contract. The Company has delivered to Parent 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) Section 4.18(a) 3.15 of the Company Seller Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, Agreement a true and complete list of the following Contracts to which the Company Transferred Companies or any of its their respective Subsidiaries is a party or by which is bound or otherwise in relation to the Company or any of its Subsidiaries is bound:
Business (i) any “material contract” (as all such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be Contracts required to be disclosed under Item 404(alisted on Section 3.15 of the Seller Disclosure Schedule, together with all Material Purchase Orders, the “Material Contracts”):
(1) Contracts material to the Business containing a minimum purchase requirement for the Transferred Companies or their respective Subsidiaries to purchase during the twelve (12)-month period immediately following, or pursuant to which the Transferred Companies or their respective Subsidiaries have purchased during the twelve (12)-month period immediately preceding, December 31, 2011, in the aggregate, a minimum of Regulation S-K promulgated under the Exchange Act$15,000,000 of goods and/or services on an annual basis;
(ii2) Contracts material to the Business containing a minimum supply commitment for the Transferred Companies or their respective Subsidiaries to sell during the twelve (12)-month period immediately following, or pursuant to which the Transferred Companies or their respective Subsidiaries have sold during the twelve (12)-month period immediately preceding, December 31, 2011, in the aggregate, a minimum of $10,000,000 of goods and/or services on an annual basis;
(3) any Contract that (A) imposes containing any restriction on the right or ability future capital expenditure obligations of the Company, any of its Transferred Companies or their respective Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following otherwise relating to the Effective Time will restrict the ability Business) in excess of Parent $5,000,000;
(4) any joint venture, partnership, shareholders or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the other similar agreement involving a Transferred Company or its Subsidiaries (or following the Effective Timeincluding, Parent or its Subsidiariesfor this purpose, Sullair Argentina S.A., Sullair do Brasil Ltda. and IHI-Sullair Compression Technology (Suzhou) to conduct business Co., Ltd.) with any a third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsparty;
(iii5) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(vi) any Contract that provides for entered into after January 1, 2011, or not yet consummated, relating to the acquisition or disposition of any business, assets (or capital stock or other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) equity interests of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business any Person (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $2,500,000 individually, or $7,500,000 in the aggregate, other than purchases or sales of raw materials, inventory or similar assets in the ordinary course of business, and that contains representations(ii) any Contract relating to the acquisition or disposition of any business, covenants, indemnities assets or capital stock or other equity interests of any Person (whether by merger, sale of stock, sale of assets or otherwise) under which the Transferred Companies or their respective Subsidiaries will have an obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or indemnification obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material but excluding indemnification obligations with respect to the Company or any of its Subsidiariesretained liabilities);
(vi6) any joint venture, partnership, limited liability company Contract containing covenants that would by its terms restrict or strategic alliance limit in any material respect the ability of the Transferred Companies or their respective Affiliates after the Closing to compete in any business or with any Person or in any geographic area;
(7) any collective bargaining agreement or other similar Contract with a third partylabor union or other labor organization;
(vii8) (i) any Contract that obligates the Company or pursuant to which any of its the Transferred Companies or their respective Subsidiaries to make any loans, advances will license or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right is otherwise permitted by a third party to use any material Intellectual Property (other than licenses in respect of any “shrink wrap”, “commercially available software) software package”, or “click through” license), or (Bii) permitting any Contract pursuant to which a third person party licenses or is otherwise permitted to use, enforce or register use any material Intellectual Property, including Property owned by any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇of the Transferred Companies or their respective Subsidiaries;
(ix9) any lease or sublease related to (i) any Leased Real Property at which any Transferred Company or Subsidiary thereof currently conducts manufacturing or assembling activities and (ii) any other Leased Real Property providing for annual rents in excess of $1,000,000;
(10) any Contract that is expected with any supplier or customer of any Transferred Company or Subsidiary thereof or any other Person pursuant to result which the Transferred Companies and their respective Subsidiaries would reasonably expect to make or receive aggregate payments, or otherwise involves consideration with a value, in the payment or receipt excess of more than $30,000,000 by the Company and its Subsidiaries 5,000,000 in 2016any calendar year;
(x11) any Contract relating to or evidencing Indebtedness in excess of $2,500,000 individually or $7,500,000 in the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a wholeaggregate; and
(xi12) any Contract the China JV Buy-Out Agreements.
(b) It is agreed and understood that (i) purchase orders and invoices for the purchase or sale of products or services by the Business having an aggregate value with any Top Supplier one supplier or Top Customer, other than, customer in excess of $5,000,000 in any calendar year (the case of each Top Supplier and each Top Customers identified “Material Purchase Orders”) shall not be required to be listed in Section 4.18(a)(xi)(A3.15 of the Seller Disclosure Schedule, (ii) the identity of any customer, supplier or other Person that is a counterparty to a Material Purchase Order shall be listed on Section 3.15(a)(10) of the Company Seller Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales and (iii) Material Purchase Orders shall be considered to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as be “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 for purposes of this Agreement.
(bc) Neither the Company nor any Subsidiary A correct and complete copy of the Company is in breach of or default under the terms of any Company each Material Contract (other than purchase orders and invoices that do not deviate in any material respect from the standard forms made available to Purchaser prior to the date hereof) has been made available to Purchaser prior to the date hereof. Each Material Contract is a legal, valid and binding obligation of a Transferred Company or one of its Subsidiaries, as applicable, and, to the knowledge Knowledge of the CompanySellers, no on each counterparty and is in full force and effect. Neither the Transferred Companies nor their respective Subsidiaries, nor to the Knowledge of the Sellers, any other party to any Company Material Contract thereto, is in breach of of, or in default under the terms of under, any Company such Material Contract, in any material respect. No 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 such a breach of or default under thereunder by the terms Transferred Companies or their respective Subsidiaries, or, to the Knowledge of the Sellers, any Company Material Contractother party thereto, in each case except as has for such breaches and defaults that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectmaterial effect on the Transferred Companies and their respective Subsidiaries, taken as a whole. Each Company Material Contract is a valid and binding obligation As of the Company or the Subsidiary date hereof, neither Parent nor any of the Company that is party thereto andSellers, to the knowledge Transferred Companies nor any of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge Subsidiaries of the CompanyTransferred Companies has received written notice of termination, threatened cancellation or non-renewal with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Purchase and Sale Agreement (United Technologies Corp /De/)
Material Contracts. (a) Section 4.18(a4.16(a) of the Company Disclosure Schedule sets forth lists the following types of Contracts and agreements to which the Company or any of its Subsidiaries is a true party, excluding for this purpose, any purchase orders submitted by customers and complete list, as the Plans listed on Section 4.10(a) of the date Company Disclosure Schedule (such contracts and agreements as are required to be set forth in Section 4.16(a) of this Agreementthe Company Disclosure Schedule being the “Material Contracts”):
(i) all Contracts and agreements with consideration payable to or by the Company or any of its Subsidiaries, exclusive of postage or interchange, of more than $100,000, in the following aggregate, over any 12-month period;
(ii) all Contracts and agreements with suppliers to the Company or any of its Subsidiaries, including those relating to the design, development, manufacture or sale of Products of the Company or any of its Subsidiaries, for expenditures paid or payable by the Company or any of its Subsidiaries of more than $50,000, in the aggregate, over any 12-month period;
(iii) all Contracts with any of the top five (5) customers of the Company and its Subsidiaries, taken as a whole, based on revenue for the fiscal year ended December 31, 2020 or top five (5) suppliers of the Company and its Subsidiaries, taken as a whole, based on amounts paid by the Company and its Subsidiaries, for the fiscal year ended December 31, 2020;
(iv) all material Contracts granting rights to manufacture, produce, assemble, license, market or sell any Products of the Company or any of its Subsidiaries;
(v) all material Contracts with any original equipment manufacturer or “Tier 1” original equipment manufacturer or supplier;
(vi) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts and agreements to which the Company or any of its Subsidiaries is a party that are material to the business of the Company;
(vii) all management Contracts (excluding Contracts for employment) to the extent material to the business of the Company;
(viii) all Contracts with any directors, officers or by employees of the Company or any Subsidiary (other than the Plans listed on Section 4.10(a) of the Company Disclosure Schedule or at-will employment arrangements with employees entered into in the ordinary course of business consistent with past practice);
(ix) all Contracts or agreements 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 to which the Company or such Subsidiary, as applicable, is a party;
(x) all Contracts and agreements evidencing Indebtedness in an amount greater than $100,000, and any pledge agreements, security agreements or other collateral agreements in which the Company or any of its Subsidiaries granted to any Person a security interest in or Lien on any of the property or assets of the Company or any of its Subsidiaries, and all agreements or instruments guaranteeing the debts or other obligations of any Person;
(xi) all Contracts establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries;
(xii) any Contract with outstanding obligations for the sale or purchase of personal property (excluding Intellectual Property), fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $250,000 or, together with all related Contracts, in excess of $500,000 in the calendar year ended December 31, 2020 or any subsequent calendar year;
(xiii) all Contracts and agreements with any Governmental Authority to which the Company or any of its Subsidiaries is bound:
(i) a party, other than any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany Permits;
(iixiv) any Contract all Contracts and agreements that (A) imposes any restriction on the right limit, or ability of the Companypurport to limit, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount to compete in excess any line of $10,000,000business or with any Person or in any geographic area or during any period of time, excluding Contracts as to which any such limit or limits are solely in respect of confidentiality obligations or use restrictions on confidential information exchanged thereunder;
(vxv) all Contracts or arrangements that result in any Contract Person holding a power of attorney from the Company that provides for materially relates to the acquisition Company, or disposition materially impacts its business;
(xvi) all Leases, and all leases or master leases of any assets personal property, reasonably likely to result in annual payments of $100,000 or more in a 12-month period;
(other than obligations set forth xvii) all Contracts required to be listed in the capital expenditure budget set forth on Section 6.1(h4.13(a) of the Company Disclosure Schedule and acquisitions Schedule;
(xviii) all Contracts which involve the license or dispositions grant of inventory rights to Company Owned IP by the Company or any of its Subsidiaries that are material to the business of the Company, other than non-exclusive licenses (or sublicenses) granted in the ordinary course of business;
(xix) all Contracts or business (whether by mergeragreements under which the Company or any of its Subsidiaries has agreed to purchase goods or services from a vendor, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities supplier or other obligations Person on a preferred supplier or “most favored supplier” basis;
(including “earnout” xx) all Contracts or other contingent payment obligations) outstanding as agreements for the development of Company Owned IP for the benefit of the date Company or any of this Agreement its Subsidiaries that are material to the Company, other than employment and consulting agreements entered into on the form of such agreement made available in the Virtual Data Room, without material modification;
(xxi) all Contracts or agreements under which any broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions, or which has a fee tail still in effect, based upon arrangements made by or on behalf of the Company or any of its Subsidiaries;
(vixxii) any joint venture, partnership, limited liability company Company Affiliate Agreement that will not be terminated at or strategic alliance agreement or other similar Contract with a third partyprior to the Closing;
(viixxiii) any Contract that obligates contains an existing obligation (contingent or otherwise) to pay any amounts in respect of indemnification obligations, purchase price adjustment, earn-outs, backend payment, deferred payments or similar obligation;
(xxiv) any Contract that grants to any Person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any securities, assets or other interest of the Company or any of its Subsidiaries;
(xxv) any principal transaction Contract entered into in connection with a completed acquisition or disposition by the Company or any of its Subsidiaries to make since December 31, 2018 involving consideration in excess of $250,000 of any loansPerson or other business organization, advances division or capital contributions to, business of any Person (including through merger or investments in, consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any person;other manner); and
(viiixxvi) any Contract not made in the ordinary course of business and not disclosed pursuant to any other clause under this Section 4.16 that resulted in revenue or required expenditures in excess of $1,000,000 in the calendar year ended December 31, 2020.
(Ab) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplierExcept as has not been, and co-packing agreements), coexistence agreements and covenants would not to ▇▇▇;
(ix) any Contract that is reasonably be expected to result be, individually or in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw materialaggregate, component or service that is material to the Company and its Subsidiaries, Subsidiaries taken as a whole; and
whole (xii) any each Material Contract with any Top Supplier or Top Customeris a legal, other than, in the case of each Top Supplier valid and each Top Customers identified in Section 4.18(a)(xi)(A) binding obligation of the Company Disclosure Scheduleor any of its Subsidiaries, Contracts thatas applicable, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no the other party to parties thereto, and neither the Company nor any Company Material Contract of its Subsidiaries is in breach or violation of, or default, or would be in breach or violation of, or default, with the giving of or default under the terms of any Company Material Contract, in any material respect. 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 both, under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Company’s knowledge, no other party is in breach or violation of, or default, or would constitute a be in breach or violation of, or default, with the giving of notice or default under the terms lapse of time or both, under, any Company Material Contract, in each case except as has not had ; and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and (iii) neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for defaultwritten, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is oral claim of any default under any such party threatening Material Contract. The Company has furnished or made available to do soGCAC in the Virtual Data Room true and complete copies, in each case except as has not had and would not reasonably be expected to haveall respects, individually or of all Material Contracts, including amendments thereto that are material in the aggregate, a Company Material Adverse Effectnature.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Business Combination Agreement (Growth Capital Acquisition Corp.)
Material Contracts. (a) Section 4.18(a) 2.14 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts specifically identifies by subsection each Contract to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company or any Subsidiary is otherwise bound that constitutes a Material Contract, and any amendments thereto. For purposes of its Subsidiaries is boundthis Agreement, each of the following shall be deemed to constitute a “Material Contract”:
(i) any “material contract” each executory Contract for (as such term is defined in Item 601(b)(10A) of Regulation S-K the customers listed on Section 2.25 of the SECDisclosure Schedule, (B) or any Contract that is the five largest resellers of the type that would be required Company Software, by revenue attributable to be disclosed under Item 404(asuch resellers for the Company Group’s fiscal year ended December 31, 2008 and for the period beginning on January 1, 2009 through September 30, 2009, and (C) of Regulation S-K promulgated under the Exchange Actthird party Software providers for which the Company Group resells for the period beginning on January 1, 2009 through September 30, 2009;
(ii) any Contract that (A) imposes any restriction on the right partnership, joint venture or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rightsContract;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreementContract relating to Indebtedness;
(iv) any agreement relating Contract limiting the freedom of the Company or any Subsidiary to Indebtedness engage or participate, or compete with any other Person, in any line of business, market or geographic area;
(v) any Contract pursuant to which the Company or any Subsidiary is a lessor or lessee of any real property or of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property that by its terms requires the payment of in excess of $100,000 per annum or under which it has imposed a Lien on all, or any portion of, its assets;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan for the benefit of its current or former directors, executive officers or employees;
(vii) any collective bargaining Contract;
(viii) any Contract for the employment of any individual on a full-time, part-time, consulting or other basis (excluding any ordinary course assignment of inventions agreements, non-disclosure agreements, offer letters for “at-will” employment and similar employment arrangements) or providing severance benefits;
(ix) any Contract to indemnify, hold harmless or defend any Person, other than (A) Contracts related to the license of Software, and (B) Contracts where the obligation of any member of the Company Group to indemnify, hold harmless or defend any Person under the Contract does not exceed $100,000;
(x) any Contract under which it has advanced or loaned any amount to any of its directors and executive officers (except for expense reimbursements and similar arrangements in the ordinary course of business);
(xi) any Contract between the Company or any of its Subsidiaries having an outstanding principal amount in excess and any of $10,000,000;their Affiliates; and
(vxii) any other Contract that provides for (x) under which the acquisition consequences of a default or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth termination could have a Material Adverse Effect on Section 6.1(h) a member of the Company Disclosure Schedule and acquisitions Group, or dispositions of inventory (y) not made in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; andBusiness.
(xib) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a correct and complete and correct copy of each Company Material written Contract (as amended to date) listed in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary Section 2.14 of the Company is in breach Disclosure Schedule and a written summary of or default under setting forth the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is 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, conditions of each other party thereto, and is oral agreement referred to in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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.Section 2.14
Appears in 1 contract
Material Contracts. (a) Subsections (i) through (x) of Section 4.18(a3.18(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of list the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which (such Contracts as are required to be set forth in Section 3.18(a) of the Company or any of its Subsidiaries is bound:Disclosure Schedule are referred to in this Agreement as the “Material Contracts”):
(i) any each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SECSecurities Act) or any Contract that is of with respect to the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActCompany (including its Subsidiaries);
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or all supply Contracts under which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of has paid $10,000,000;
(v) any Contract that provides for the acquisition 1 million or disposition of any assets (other than obligations set forth more in the capital expenditure budget set forth on Section 6.1(htwelve (12) of the Company Disclosure Schedule and acquisitions month period ended December 31, 2005, or dispositions of inventory in the ordinary course of business) or business (whether by mergerhas committed, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date hereof, to pay $1 million or more over the twelve (12) month period following the date of this Agreement that are material Agreement;
(iii) all joint venture, partnership, strategic alliance and business acquisition or divestiture Contracts;
(iv) all Contracts relating to issuances of securities of the Company or any of its Subsidiaries;
(v) all distributor and all material broker, dealer, manufacturer’s representative, franchise and agency Contracts;
(vi) any joint venture, partnership, limited liability company all Contracts evidencing Indebtedness of $500,000 or strategic alliance agreement or other similar Contract with a third partymore;
(vii) all Contracts with any Contract Governmental Authority under which the Company or any of its Subsidiaries has received or paid $500,000 or more in the twelve (12) month period ended December 31, 2005, or under which such Governmental Authority has committed to pay to the Company or any of its Subsidiaries or the Company or any of its Subsidiaires has committed to pay, in each case, as of the date hereof, $500,000 or more over the twelve (12) month period following the date of this Agreement, other than those Contracts for research projects or for the sale of goods or services in the ordinary course of business to municipal or government-owned hospitals, laboratories or state academic institutions;
(viii) all Contracts that obligates limit, or purport to limit, the ability of the Company or any of its Subsidiaries to make compete in any loans, advances line of business or capital contributions to, with any Person or investments in, entity or in any person;
(viii) geographic area or during any Contract (A) granting the Company or one period of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇time;
(ix) any Contract all Contracts that is expected to result in the payment or receipt any Person holding a material power of more than $30,000,000 by attorney from the Company and or any of its Subsidiaries that relates to the Company, any such Subsidiary or their respective businesses other than limited powers of attorney granted in 2016;the ordinary course of business consistent with past practice; and
(x) any Contract relating to all other Contracts, whether or not made in the supply ordinary course of any item used by the Company or a Subsidiary of the Company business, that is a sole source of supply of any raw material, component or service that is are material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier , the absence of which, individually or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting reasonably would be expected to result in a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses Material Adverse Effect.
(i) through (xi) above, 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 Each Material Contract as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary is a legal, valid and binding agreement of the Company is in breach of or default under the terms of any Company Material Contract applicable Subsidiary, as the case may be, and, to the knowledge Knowledge of the Company, of the other party(ies) thereto; (ii) none of the Company or any of its Subsidiaries is in material breach or violation of, or material default under (nor, to the Knowledge of the Company, does there exist any condition that, upon the passage of time or the giving of notice or both would result in a violation or breach of, or constitute a default under, or give rise to any right of termination, amendment, cancellation, acceleration or loss of benefits, or result in the creation of any Encumbrance upon any of the properties or assets of the Company or any of its Subsidiaries), any Material Contract; (iii) to the Knowledge of the Company, no other party is in material breach or violation of, or material default under (nor does there exist any condition that, upon the passage of time or the giving of notice or both would result in a violation or breach of, or constitute a default under, or give rise to any Company Material Contract is right of termination, amendment, cancellation, acceleration or loss of benefits, or result in breach of or default under the terms creation of any Encumbrance upon any of the properties or assets of the Company Material Contract, in any material respect. 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation ; (iv) none 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of default or notice to cure under any Material Contract that remains uncured; and (v) neither the intention execution of this Agreement nor the consummation of any other party transaction contemplated by this Agreement, including the Merger, shall constitute a default under, give rise to any Company Material Contract to terminate for defaultcancellation rights under, convenience or otherwise adversely affect any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with rights of the Company or any Subsidiary of the Company, given notice its Subsidiaries under any Material Contract. The Company has furnished or made available to the Company or Purchaser true and complete copies of all Material Contracts, including 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 foregoingamendments thereto.
Appears in 1 contract
Material Contracts. (a) Section 4.18(aSchedule 5.13(a) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, all of the following Contracts to which the Company or any of its the Companies or the Subsidiaries is a party or by which the Company or any of its Subsidiaries it is bound:, other than Contracts that have been terminated or will expire by their terms before or upon the Closing or Contracts with Affiliates of Seller that will be terminated before or upon the Closing (collectively, the “Material Contracts”):
(i) Contracts with Seller or any “material contract” (as such term is defined in Item 601(b)(10) current officer or director of Regulation S-K any of the SEC) Companies or any Contract that is of the type that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange ActSubsidiaries;
(ii) Contracts with any Contract that (A) imposes labor union or association representing any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate employee of any of them to compete with any other person in any line of business the Companies or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) Contracts entered into on or after January 1, 2002 for the sale of any collective bargaining agreementof the assets of any of the Companies or the Subsidiaries, labor union contract or trade union agreement (eachother than in the Ordinary Course of Business, a “Collective Bargaining Agreement”) or other works council agreementfor consideration in excess of $1,000,000;
(iv) any agreement Contracts entered into on or after January 1, 2002 relating to Indebtedness the acquisition by any of the Company Companies or the Subsidiaries of any operating business or the equity of its Subsidiaries having an outstanding principal amount any other Person, in each case for consideration in excess of $10,000,0001,000,000;
(v) any Contract that provides for Contracts relating to the acquisition incurrence of Indebtedness or disposition the making of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) loans by any of the Company Disclosure Schedule and acquisitions Companies or dispositions the Subsidiaries, in each case involving amounts in excess of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries$500,000;
(vi) any joint ventureother Contracts (except for Real Property Leases, partnership, limited liability company Personal Property Leases and any Company Benefit Plan) between any of the Companies or strategic alliance agreement the Subsidiaries and any Person to whom any of the Companies or other similar Contract with the Subsidiaries is obligated to pay more than $250,000 in consideration in a third party;calendar year that have a term of longer than ninety (90) days or are not terminable by any of the Companies or the Subsidiaries without penalty on notice of ninety (90) days or less; and
(vii) any Contract that obligates the other Contracts (except for Real Property Leases, Personal Property Leases and any Company or Benefit Plan) between any of its the Companies or the Subsidiaries to make and any loans, advances or capital contributions to, or investments in, any person;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract Person that is expected obligated to result in the payment or receipt of pay more than $30,000,000 by the Company and its Subsidiaries 250,000 in 2016;
(x) consideration in a calendar year to any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company Companies or the Subsidiaries that is have a sole source term of supply of longer than ninety (90) days or are not terminable by any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in Companies or the aggregate, do not represent purchases Subsidiaries without penalty on notice of ninety (90) days or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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 Agreementless.
(b) Neither Except as set forth on Schedule 5.13(b), neither of the Company Companies nor any Subsidiary of the Company is in breach of or default under the terms has received any written notice of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of default or default under the terms of any Company Material Contract, in any material respect. 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 time, or both both, would constitute a breach default by any of the Companies or default the Subsidiaries under the terms of any Company Material Contract, in each case Real Property Lease or Personal Property Lease, except as has not had and for defaults that would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect. 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. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to the date hereof, no Top Supplier or Top Customer 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 1 contract
Sources: Limited Liability Company Membership Interest and Stock Purchase Agreement (Oneok Inc /New/)
Material Contracts. (a) Except for: (i) this Agreement; (ii) any Contracts to which the Company or any Company Subsidiary is a party as of the date of this Agreement that is disclosed in the Company SEC Reports; or (iii) as set forth in Section 4.18(a4.14(a) of the Company Disclosure Schedule sets forth a true and complete listLetter, as of the date of this Agreement, none of the Company or any Company Subsidiary is a party to or bound by (the Contracts referred to in the foregoing clauses (ii) and (iii) and each of the following Contracts to which described in this Section 4.14(a), collectively, the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound:“Material Contracts”):
(iA) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract that is of the type that would be required to be disclosed under filed by the Company pursuant to Item 404(a) 15 of Regulation SForm 10-K promulgated under the Exchange Act;
(ii) any Contract that (A) imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or any of its Subsidiaries;
(vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreements), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply purchase or sale of any item used Company Securities or any Company Subsidiary Securities;
(C) 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 $500,000, other than any Indebtedness entirely between or among any of the Company and any Company Subsidiary;
(D) 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 a any Company Subsidiary of the Company that is a sole source of supply of with any raw materialthird party, component or service in each case that is material to the business of the Company and its Subsidiaries, the Company Subsidiaries taken as a whole; and;
(xiE) any Contract relating to any acquisition by the Company or any Company Subsidiary involving consideration in excess of $5,000,000 pursuant to which the Company or any Company Subsidiary has continuing indemnification, “earn-out” or other contingent payment or guarantee obligations;
(F) 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;
(G) any Contract involving the payment or receipt of amounts by the Company or any Company Subsidiary of more than $1,000,000 annually;
(H) any Contract with any Top Supplier surety providers;
(I) any Contract relating to (x) the acquisition of a business or Top Customerentity, other thanor substantially all the assets of a business or entity or (y) the disposition of any material assets or properties, in each case whether by way of merger, consolidation, purchase or sale of stock, purchase or sale of assets, license or otherwise that entered into but not yet closed and involving consideration in excess of $5,000,000; or
(J) any Contract prohibiting the case payment of each Top Supplier and each Top Customers identified dividends or distributions in Section 4.18(a)(xi)(A) respect of the capital stock of the Company Disclosure Scheduleor any Company Subsidiary, Contracts that, in prohibits the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts pledging of the types referred to in clauses (i) through (xi) above, are referred to herein as “capital stock of the Company Material Contracts.” The or any Company has made available to Parent prior to Subsidiary or prohibits the date issuance of this Agreement a complete and correct copy of each any guaranty by the Company Material Contract as in effect on the date of this Agreementor any Company Subsidiary.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. 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 Except as would constitute a breach of or default under the terms of any Company Material Contract, in each case except as has not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each Company : (i) each Material Contract is a valid and binding obligation of on the Company or the a Company 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. There are no disputes pending or, subject to the knowledge of the Company, threatened with respect to any Company Material Contract, Bankruptcy and Equity Exception; (ii) neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material ContractSubsidiary, nor to the knowledge of the Company, any other party to a Material Contract is in breach or violation of, or default under, or has taken or failed to take any such party threatening to do soact which, in each case except as with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract; (iii) the Company and the Company Subsidiaries have not received any claim or notice of default under any Material Contract; and (iv) the Company has not had and would not reasonably be expected to havereceived, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1, 2016 to as of the date hereofof this Agreement, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice in writing from any person that such person intends to the Company or terminate 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 foregoingMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Stonemor Inc.)
Material Contracts. (a) Section 4.18(a) Schedule 2.5 lists each Contract to which any of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of the following Contracts to which the Company Companies or any of its Subsidiaries Subsidiary is a party or by to which any of the Company Companies, any Subsidiary or any of its Subsidiaries their respective properties is bound:
(i) subject or by which any “material contract” (as such term thereof is defined in Item 601(b)(10) of Regulation S-K of the SEC) or any Contract bound that is of the type that would be required to be disclosed deemed a Material Contract under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ii) any this Agreement. Each Contract that (A) imposes any restriction existing on the right or ability of the Company, any of its Subsidiaries or any Affiliate of any of them to compete with any other person in any line of business or geographic region (or that following the Effective Time will restrict the ability of Parent or its Affiliates to engage in any line of business or compete in any geographic area) or (B) obligates the Company or its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” rights or similar rights;
(iii) any collective bargaining agreement, labor union contract or trade union agreement (each, a “Collective Bargaining Agreement”) or other works council agreement;
(iv) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(v) any Contract that provides for the acquisition or disposition of any assets (other than obligations set forth in the capital expenditure budget set forth on Section 6.1(h) of the Company Disclosure Schedule and acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) outstanding as of the date of this Agreement that are material to the Company or (a) after September 30, 1995 obligates any of its Subsidiaries;
the Companies to pay $250,000 or more (vi) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract excluding purchase orders in the ordinary course of business consistent with a third party;
(vii) 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;
(viii) any Contract (A) granting the Company or one of its Subsidiaries any right to use any material Intellectual Property (other than licenses in respect of commercially available software) or (B) permitting any third person to use, enforce or register any material Intellectual Property, including any material license agreements (other than customary non-exclusive licensing provisions included in customer, supplier, and co-packing agreementspast practices), coexistence agreements and covenants not to ▇▇▇;
(ix) any Contract that is expected to result in the payment or receipt of more than $30,000,000 by the Company and its Subsidiaries in 2016;
(x) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service that is material to the Company and its Subsidiaries, taken as a whole; and
(xi) any Contract with any Top Supplier or Top Customer, other than, in the case of each Top Supplier and each Top Customers identified in Section 4.18(a)(xi)(A) of the Company Disclosure Schedule, Contracts that, in the aggregate, do not represent purchases or sales, respectively, constituting a majority of purchases from such Top Supplier or sales to such Top Customer. All contracts of the types referred to in clauses (i) through (xi) above, 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) Neither the Company nor any Subsidiary has an unexpired term as of the Company is date hereof in breach excess of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract, in any material respect. No event has occurred or one year and cannot 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 has not had and would not reasonably be expected to have, individually or in the aggregate, terminated by a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation or Subsidiary without liability in excess of the Company or the Subsidiary of the Company that is party thereto and$250,000, to the knowledge of the Company, of each other party thereto, and is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since January 1provides for an extension of credit in excess of $250,000, 2016 to other than consistent with normal credit terms, (d) limits or restricts the date hereof, no Top Supplier or Top Customer has canceled, terminated or substantially curtailed its relationship with the right of any Company or any Subsidiary to compete or otherwise to conduct its business in any manner or place, (e) provides for a guaranty or indemnity by any of the Company, given notice to the Company Companies or any Subsidiary where the liability or obligation guaranteed or indemnified against exceeds $250,000, (f) grants a general power of attorney, agency or similar authority to another person or entity, (g) contains a right of first refusal, or (h) contains a right or obligation of any Affiliate, officer or director, or any Associate of any of the Company foregoing, of any intention to cancelof the Sellers, terminate or substantially curtail its relationship with any of the Company Companies or any Subsidiary against or to any of the CompanyCompanies or any Subsidiary, shall be deemed to be a Material Contract and has been identified on such Schedule 2.5. True copies of the agreements appearing on Schedule 2.5, including all amendments and supplements, have been delivered to Buyer. No material breach or default, to the best knowledge of the Sellers and the Companies, alleged material breach or default, or event which would (with the passage of time, notice or both) constitute a material breach or default under any Material Contract by any of the Companies or the Subsidiaries, as the case may be, or, to the best knowledge of the CompanySellers and the Companies, threatened to do any of the foregoingother party or obligor with respect thereto, has occurred.
Appears in 1 contract