Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract: (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act); (ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries); (iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company); (iv) that is a Government Contract; (v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000; (vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations; (vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole; (viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company); (ix) any hedging, swap, derivative, or similar Contract; (x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole; (xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole; (xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000; (xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024; (xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions); (xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or (xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries. (b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Material Contracts. (a) Except Section 4.13(a) of the Target Disclosure Letter, and with respect to clause (ixvi) as filed as exhibits below, Section 4.12 of the Target Disclosure Letter, sets forth an accurate and complete list of the following Contracts to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, which Target or any of its Subsidiaries is a party or by which any of them is bound as of the date hereofhereof (collectively, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:“Material Contracts”):
(i) that is a “material contract” (as such term is defined all Contracts which contain restrictions with respect to payment of dividends or any other distribution in Item 601(b)(10) of Regulation S-K respect of the Exchange Act)capital stock or other equity interests of Target or any of its Subsidiaries;
(ii) that is with all Contracts relating to capital expenditures or other purchases of material, supplies, equipment (including all Contracts to purchase containers, trailers or portable offices) or other assets or properties in excess of $250,000 individually, or $500,000 in the ten aggregate on an annual basis;
(10iii) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 all Contracts involving a loan (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than accounts receivable in the ordinary course of business, ) or advance to (other than advances and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable allowances to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors employees of the Company Target and any of its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into extended in the ordinary course of business), and other similar Contracts that are ancillary or investment in, any Person or any Contract relating to Contracts pursuant to which cost the making of goods and services is paid any such loan, advance or payable by investment, in each case, in excess of $100,000 individually or $500,000 in the Company)aggregate;
(iv) that is a Government Contractall Contracts involving Indebtedness of Target or any of its Subsidiaries;
(v) evidencing all Contracts with customers pursuant to which a capital expenditure for which future payments are required customer leases or otherwise has possession of a container, trailer or portable office to the extent such Contract evidences quarterly revenue in excess of $5,000,000500,000;
(vi) relating to the disposition all Contracts granting or acquisition of evidencing a Lien on any business, equity, material properties or all or substantially all of the assets of Target or any Person for aggregate consideration of its Subsidiaries, other than a Permitted Lien;
(vii) any management service, consulting, financial advisory or any other similar type Contract and any Contracts with any investment or commercial bank and involving an annual amount in excess of $5,000,000 by 250,000;
(viii) all Contracts limiting the Company ability of Target or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person and, to the Knowledge of Target, any Contracts that would limit the ability of Parent or any of its Affiliates to engage in any geographic area, line of business or to compete with any Person after the Effective Time;
(ix) all Contracts (other than this Agreement and any customary employee nonagreement or instrument entered into pursuant to this Agreement) with (A) any Affiliate of Target, or (B) any current or former officer or director of Target or any of its Subsidiaries, but not including any Contracts with any former officer or director of Target or any of its Subsidiaries to the extent that Target and such Subsidiaries do not have any ongoing Liabilities under such Contracts;
(x) all Contracts (including letters of intent) involving the future disposition or acquisition of material assets or properties (including acquisitions or dispositions of containers, trailers or portable offices for a purchase price in excess of $100,000), or any merger, consolidation or similar business combination transaction, whether or not enforceable;
(xi) all Contracts involving any material joint venture, partnership, strategic alliance, shareholders’ agreement, co-solicitation marketing, co-promotion, co-packaging, joint development or no-hire clauses similar arrangement;
(xii) all Contracts involving any material resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute and involving an amount in excess of $100,000 (other than payments, discharges or satisfactions of workers’ compensation, auto insurance and general liability insurance claims);
(xiii) all Contracts involving a confidentiality, standstill or similar agreement or arrangement other than confidentiality agreements entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits business which would not limit the ability of Parent and its Subsidiaries to receive such information after the Company Effective Time;
(xiv) all Contracts involving payments of $250,000 or more, individually, to or from Target or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee which are not cancelable by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company Target or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
without penalty on ninety (xiv90) that is a settlement, conciliation days or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)less notice;
(xv) any stockholders’ agreement, proxy, voting trust agreement material licenses of Intellectual Property to or registration rights agreement from Target or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries (except for licenses of mass-marketed or relating to disposition, voting or dividends with respect to shrink-wrap software available on non-discriminatory terms);
(xvi) any equity securities of the Company or any of its SubsidiariesReal Property Lease; or
(xvixvii) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among pursuant to which any amount may become due and payable as a result of the Company and its wholly-owned Subsidiariestransactions contemplated hereby, including without limitation, any change of control payments or severance arrangements.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in on Section 4.15(a4.13(a) of the Company Target Disclosure Schedule, is referred Letter other than the Real Property Leases (or required to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all be set forth on Section 4.13(a) of the Material Contracts are Target Disclosure Letter) is in full force and effect and there exists no (Ai) valid and binding on the Company material default or the applicable Subsidiary event of the Company, as the case may be, anddefault by Target or any of its Subsidiaries or, to the Knowledge of the CompanyTarget, each any other party theretoto any such Material Contract with respect to any material term or provision of any such Material Contract, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notto the Knowledge of Target, individually event, occurrence, condition or in act (including the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary consummation of the Company hastransactions contemplated hereby) which, andwith the giving of notice, the lapse of time or the happening of any other event or condition, would become a material default or event of default by Target or any of its Subsidiaries or, to the Knowledge of the CompanyTarget, none any other party thereto, with respect to any material term or provision of any such Material Contract. Target has made available to Parent true and complete copies, including all amendments, of each Contract set forth on Section 4.13(a) of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which Target Disclosure Letter.
(with or without notice, lapse of time or bothc) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge As of the Companydate hereof, neither Target has not made any indemnification claim under the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectSponsor Merger Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Mobile Mini Inc), Merger Agreement (Mobile Services Group Inc), Merger Agreement (Mobile Storage Group Inc)
Material Contracts. (a) Except (iSection 4.10(a) as filed as exhibits to of the Company SEC DocumentsDisclosure Schedule sets forth a true, (ii) for this Agreement complete and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as correct list of each of the date hereof, neither the Company nor any Subsidiary of following Contracts to which the Company is a party to or by which the Company is bound by any Contract:and which have not been entirely fulfilled or performed (such Contracts, collectively, the “Material Contracts”):
(i) all Contracts that is a “material contract” (as such term is defined contain restrictions with respect to payment of dividends or any other distribution in Item 601(b)(10) of Regulation S-K respect of the Exchange Act)Membership Units or other Equity of the Company;
(ii) any Contract that is with by its terms requires the ten (10) largest customers payment by or on behalf of the Company and its Subsidiaries during in excess of $100,000 per annum or the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to delivery by the Company of goods or its Subsidiaries)services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum;
(iii) that is with all Contracts involving a loan (other than accounts receivable owing from trade debtors in the ten Ordinary Course of Business) or advance to (10) largest vendors other than travel and entertainment advances to the employees of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into extended in the ordinary course Ordinary Course of businessBusiness), and other similar Contracts that are ancillary or investment in, any Person or any agreement relating to Contracts pursuant to which cost the making of goods and services is paid any such loan, advance or payable by the Company)investment in excess of $25,000;
(iv) any Contract that is (i) requires the Company to purchase any product or service in excess of $100,000 from a Government Contractthird party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service;
(v) evidencing any Contract that relates to an acquisition or divestiture of material assets that contains covenants, indemnities or other contractual obligations that could impose a capital expenditure for which future payments are required in excess of $5,000,000Liability that is material to the Company;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to Contract under which the Company has any outstanding Indebtedness or its Subsidiaries have material continuing obligationsevidencing an Encumbrance on any property or asset of the Company, other than a Permitted Encumbrance;
(vii) containing all Contracts under which any Person (Aother than the Company) has directly or indirectly guaranteed Indebtedness of the Company in excess of $50,000;
(viii) any bonds or Contracts of Guarantee in which the Company acts as a covenant surety or guarantor with respect to any obligation (fixed or contingent) of another Person;
(ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date;
(xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business;
(xii) all Affiliate Contracts;
(xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other provision limiting than commercially available software and hardware) and any Intellectual Property license agreements under which the Company is currently a licensee;
(xiv) any Contract concerning the acquisition, disposition, occupancy, management or operation of any Real Property owned, leased or used by the Company;
(xv) all collective bargaining agreements entered into by the Company;
(xvi) any Contract providing that the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business;
(xvii) any Contracts with any Governmental Authority to which the Company is a party;
(xviii) any Contracts that limit, in any material respect respect, the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person or in any geographic areaarea or during any period of time;
(xix) all (i) employment agreements (excluding, other for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; and
(xx) any customary employee non-solicitation Contract to purchase, lease or no-hire clauses otherwise acquire the right to own, use or lease any property or assets, including such Contracts entered into by an Affiliate of the Company, for an amount in excess of $100,000, individually (in the ordinary course case of businessa lease, per annum) or $150,000 in the aggregate (B) “most favored nation”in the case of a lease, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits for the ability entire term of the Company or lease, not including any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or option term); and
(Dxxi) a minimum purchase, minimum volume, “earnout” or any other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, Contract that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, operation of the business of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) not otherwise disclosed pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictionsSection 4.10(a);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract The Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the type described above Company, the other party to any Material Contract is not in Section 4.15(a)breach or default under any of its terms. The Company has not received notice of any breach, whether default or not notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract has been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.15(a4.10(a) of the Company Disclosure Schedule, .
(c) Each Material Contract is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (Ai) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, thereto in accordance with its respective terms and (Bii) in full force and effect, except . Each Material Contract (ior description) as may be limited by bankruptcy, insolvency, moratorium sets forth the entire agreement and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and understanding (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary complete description of the Company hasmaterial terms, andas applicable), to the Knowledge of between the Company, none of on one hand, and the other parties thereto havethereto, violated any provision ofon the other hand, or committed or failed with respect to perform any act under, and no the subject matter thereof. No event or condition existscircumstance has occurred that, which (with notice or without notice, lapse of time or both) , would constitute an event of default under any Material Contract or result in a breach of termination thereof or default under, would cause or permit the provisions acceleration or other changes of any Material Contract, except in each case for those violations, acts (right or failures to act) and defaults which, individually obligation or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as loss of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the benefit thereunder. The Company has received written notice of no reason to believe any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty party to any Material Contract has (A) canceled or otherwise terminatedwill not fulfill its obligations thereunder in all material respects, or threatened in writing to cancel or otherwise to terminate, its relationship with and the Company has not received any notice of termination or intent to terminate by any Subsidiary party to any Material Contract.
(as applicabled) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectnoncompetition agreement.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.), Membership Interest Purchase Agreement (Planet 13 Holdings Inc.)
Material Contracts. (a) Except (i) as disclosed in any Company Report filed and publicly available or as exhibits set forth on Section 3.16 of the Disclosure Letter, or to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company extent any such Contracts constitute Employee Plans, as of the filing date hereof, neither the Company nor any Subsidiary of the Chapter 11 Plan no Endo Company is a party to or is bound by any (each such Contract:, a “Material Contract” and collectively, the “Material Contracts”):
(i) that is a “material contract” Contracts with any Affiliate or current or former officer or director of any Endo Company (as such term is defined in Item 601(b)(10) of Regulation Sother than employment-K of the Exchange Actrelated Contracts or Employee Plans);
(ii) that is with the ten (10) largest customers Contracts relating to any material business, equity or asset acquisition by any Endo Company or any disposition of any significant portion of the business, equity or assets of any Endo Company and its Subsidiaries during (in each case other than acquisitions or dispositions involving aggregate payments of less than $1,000,000 or the fiscal year ended January 31acquisition, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders sale or statements disposition of work or invoices entered into Inventory in the ordinary course Ordinary Course of businessBusiness), and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)in each case, since January 1, 2023;
(iii) any Contract that (A) relates to Indebtedness under clauses (a) or (b) of the definition thereof of any Endo Company; (B) relates to the mortgaging or pledging of, or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on, any of the assets or properties of any Endo Company; or (C) is in the nature of a capital or direct financing lease that is with required by GAAP to be treated as a long-term liability involving payments above $1,000,000 annually, in each case other than any Contract under which the ten (10) largest vendors Liabilities of the applicable Endo Company and its Subsidiaries during will be fully discharged under the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)Bankruptcy Code;
(iv) that is a Government Contractthe Collective Bargaining Agreement;
(v) evidencing any Contract pursuant to which an Endo Company (A) is granted or obtains or agrees to grant or obtain any right to use or otherwise exploit any Intellectual Property that is material to the Business, (B) is restricted in its right to use or register any Intellectual Property included in the Transferred Assets that is material to the Business, or (C) permits or agrees to permit any other Person to use, enforce or register any material Intellectual Property included in the Transferred Assets, including any such license agreements, coexistence agreements and covenants not to sue; in each case excluding any Contracts (i) containing non-exclusive licenses of Intellectual Property relating to the development, manufacture, marketing, advertising, promotion, distribution, sale or other commercialization of Products entered into in the Ordinary Course of Business, in each case that are not individually material to the Business or (ii) entered into for commercially available “off-the-shelf” Software licensed to a capital expenditure for which future payments are required in excess of $5,000,000Seller on a non-exclusive basis;
(vi) relating to the disposition any Contract or acquisition of consent decree with or from any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationsGovernmental Authority;
(vii) containing any Contract that imposes on any Endo Company or any of their respective Affiliates (including Buyers and their Affiliates following the Closing) (other than those contained in confidentiality agreements or similar Contracts) (A) a covenant any restriction on soliciting customers or other provision limiting in any material respect the ability of the Company employees or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businesscompetition restrictions, (B) “most favored nation”any restriction on entering into any line of business, “exclusivity” or similar provisionsfrom freely providing services or supplying products to any customer or potential customer, or in any part of the world, (C) a right of first refusal “most favored nation” pricing provision or right of first offer exclusive marketing or similar right that limits the ability distribution rights relating to any products or territory or minimum purchase obligations or exclusive purchase obligations with respect to any goods or services binding such Endo Company or its Affiliates in favor of the Company or any of its Subsidiaries to sellcounterparty, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchaseother than restrictions that will cease to be effective on and after the Closing, minimum volume, “earnout” any restriction on either the payment of dividends or other contingent, deferred distributions or fixed payment obligation the incurrence of Encumbrances on the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a wholeproperty or assets of any Endo Company;
(viii) relating any Contract with the customers and suppliers required to be listed on Section 3.18(a) or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, Section 3.18(b) of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)Disclosure Letter;
(ix) any hedgingContract with a sole source supplier, swappursuant to which such supplier provides to an Endo Company equipment, derivativematerials or services that are necessary for the sale, performance, manufacturing or similar Contractsupport of the Business;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted any irrevocable power of attorney given by the Company or any Subsidiary of the Endo Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant any Person for any purpose whatsoever with respect to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;Endo Company; and
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities strategic alliance, joint development, joint marketing, partnership, joint venture or similar arrangement (including any such Contract involving a sharing of the Company revenues, profits, losses, costs or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesliabilities).
(b) Each Contract of the type described above in Section 4.15(a), whether or not Except as set forth in on Section 4.15(a3.16(b) of the Company Disclosure ScheduleLetter, is referred Sellers have made available to herein as Buyers a “true, correct and complete copy of each Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all as amended to date. As of the filing date of the Chapter 11 Plan, each Material Contracts are (A) Contract is, and as of the Closing Date and subject to approval of the Bankruptcy Court, assuming payment of the Cure Claims, each Transferred Contract will be, valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, Endo Companies and, to the Knowledge of the CompanySellers, each other party the counterparties thereto, and (B) in full force and effect, except (i) as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other or similar Applicable Law laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). As of the filing date of the Chapter 11 Plan, to the Knowledge of the Sellers, no party has repudiated in writing any material provision of a Material Contract or given written notice that a Material Contract has terminated or will be terminating and, excluding the effect of the Bankruptcy Cases, no Endo Company is in breach of, or default under, in any material respect, a Material Contract to which it is a party. As of the filing date of the Chapter 11 Plan, except for violations, breaches or defaults which have been cured and (ii) for which no Endo Company has any Liability, or which will be cured as a result of the payment of the applicable Cure Claims, no Endo Company and, to the Knowledge of the Sellers, no other party to any Material Contract, has breached or defaulted in any material respect under, or has improperly terminated, revoked or accelerated, any Material Contract, and there exists no condition or event which, after notice, lapse of time or both, would constitute any such breach, default, termination, revocation or acceleration, in each case as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary .
(c) Section 3.16(c) of the Company hasDisclosure Letter lists each material insurance policy maintained by the Endo Companies as of the filing date of the Chapter 11 Plan, and, to and the deductibles and coverage limits for each such policy. To the Knowledge of Sellers, (a) the CompanyEndo Companies own or hold policies of insurance, none or are self-insured, of the types and in amounts providing reasonably adequate coverage against all risks customarily insured against by companies in similar lines of business as the Endo Companies or as may otherwise be required by applicable Law and (b) all such insurance policies are in full force and effect except for any expiration thereof in accordance with the terms thereof occurring after the date of this Agreement. The Endo Companies have not received written notice of cancelation or modification with respect to such insurance policies other parties thereto have, violated any provision of, or committed or failed to perform any act underthan in connection with ordinary renewals, and there is no existing default or event which, with the giving of notice or condition exists, which (with or without notice, lapse of time or both) , would constitute a breach default by any insured thereunder. All premiums in respect of or default under, each insurance policy maintained by the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to Endo Companies have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminatedbeen paid, or threatened in writing to cancel or otherwise to terminatewill be paid, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that when due. There is no claim pending under any such counterparty presently engages in insurance policies as to which coverage has been questioned, denied or presently conducts with disputed by the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectunderwriters of such policies.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Material Contracts. (a) Except Other than (i) as filed as exhibits to the Company SEC DocumentsReal Property Leases, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and Company Plans, (iii) for Company Employee PlansContracts listed on Schedule 4.16(a) and 4.16(b) and (iv) Intellectual Property Licenses, Schedule 4.11(a) lists, as of the date hereof, neither all of the Company nor any Subsidiary of following executory contracts to which the Company is a party or by which its assets are bound (the "Material Contracts"):
(1) individual Contracts with customers with respect to which the Company billed more than $100,000 during 1999;
(2) any individual Contract which is an exclusive dealing, requirements or take or pay agreement involving expenditures in excess of $50,000 during 1998;
(3) Contracts not listed or required to be listed pursuant to Section 4.11(a)(2) which provide for aggregate future annual payments by the Company of more than $100,000, except for purchase orders or sales orders arising in the ordinary and usual course of business, in which case they are listed only if any party thereto is bound obligated to make payments pursuant thereto aggregating more than $200,000;
(4) Contracts which establish a partnership, joint venture, material agency or other similar arrangement;
(5) any Contract which relates to indebtedness for borrowed money in excess of $50,000 or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Actasset);
(ii6) any Contract which provides for future payments that is with the ten (10) largest customers are conditioned on or result from, in whole or in part, a change of control of the Company or a change of management of the Company;
(7) any Contract which relates to marketing, sales or advertising and its Subsidiaries during provides for aggregate future payments of more than $100,000;
(8) any Contract under which the fiscal year ended January 31Company has guaranteed the obligations of any Person, 2024 agreed to indemnify any Person (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than in the ordinary course of business), and other similar Contracts that are ancillary or agreed to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)share Tax liability with any Person;
(iii9) that is with any Contract which relates to the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors acquisition by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all of the capital stock or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationsanother Person;
(vii10) containing (A) a covenant or other provision limiting in any material respect Contract which restricts the ability of the Company or any Subsidiary right of the Company to compete or engage in any line of business or to compete way with any other Person, or which contains covenants pursuant to which any non-natural Person has agreed not to compete, or otherwise restricts a non-natural Person's ability to engage freely, in any geographic area, part of the Company Business;
(11) any Contract not disclosed herein or not otherwise required to be disclosed pursuant to this Schedule 4.11 which provides for annual payments in excess of $100,000 which extends more than a year from the date hereof and is not cancelable by the Company on 30 days' written notice without penalty;
(12) any Contract which provides for the sale or lease after the date hereof of any of the assets of the Company other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, ; and
(B13) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of any Contract which binds the Company to make payments to any director or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary former director of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Purchase Agreement (Insilco Holding Co), Purchase Agreement (Insilco Corp/De/)
Material Contracts. (a) Except for Contracts set forth in Section 3.11(a) of the Holdings Disclosure Schedule (i) as filed as exhibits collectively, the "Material Contracts"), neither Holdings (with respect to the Company SEC Documents, (iiBusiness) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Transferred Company is a party to or is bound by any Contractby:
(i) any Contract that is provides for payment to a “material contract” (as such term is defined Transferred Company for the performance of services in Item 601(b)(10) an amount in excess of Regulation S-K of the Exchange Act)$1,000,000 annually;
(ii) that is with any Contract to be performed relating to capital expenditures (other than those provided for in the ten (10) largest customers Capital Expenditure Plans of the Company and its Subsidiaries during Business for 1999) in excess of $500,000 in any calendar year, or in the fiscal year ended January 31aggregate require expenditures in excess of $2,000,000;
(iii) any Contract not entered into the ordinary course of business, 2024 requiring payments by or to the Transferred Companies in excess of $1,000,000;
(as determined based on revenue received from such customers during such time periodiv) any Contract which contains restrictions with respect to payment of dividends or any other distribution in respect of the capital stock of a Transferred Company;
(v) any Contract relating to indebtedness for borrowed money in an amount in excess of $1,000,000 (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into trade payables in the ordinary course of business, intercompany indebtedness and leases for telephones, copy machines, facsimile machines and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiariesoffice equipment);
(iiivi) that is with the ten any lease (10or sublease) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors Real Property requiring payments by the Company during such time periodTransferred Companies in an amount in excess of $1,000,000 annually;
(vii) any loan or advance to (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than advances to employees in the ordinary course of businessbusiness in amounts not exceeding $1,000,000 in the aggregate), or investment in (other than investments in any Transferred Company), any Person, or any Contract relating to the making of any such loan, advance or investment;
(viii) any guarantee in respect of any indebtedness or obligation of any Person in an amount in excess of $1,000,000 (other than in the ordinary course of business and other similar Contracts that are ancillary than with respect to Contracts pursuant to which cost any indebtedness or obligation of goods and services is paid or payable by the any Transferred Company);
(ivix) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect Contract limiting the ability of the Company or any Subsidiary of the Transferred Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar ContractPerson;
(x) that is a license (any material amendment, modification or a covenant, consent or other rights supplement in or to use Intellectual Property) granted by the Company or respect of any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesforegoing.
(b) Each Contract of the type described above in Section 4.15(a), whether or not Except as set forth in Section 4.15(a3.12(b) of the Company Holdings Disclosure Schedule, : (i) there is referred to herein as a “no pending default under or breach of any Material Contract.” Except for Material Contracts that have expired Contract by Holdings or terminated by their terms, all of the Material Contracts are (A) valid and binding on the any Transferred Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition existshas occurred that, which (with or without notice, the lapse of time or the giving of notice or both) , would constitute a default thereunder by Holdings or any Transferred Company party thereto, in any such case in which such default, breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults whichevent, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectEffect on the Business; and (ii) no party to any such Material Contract has given written notice to Holdings or any Transferred Company of, or made a written claim against Holdings or any Transferred Company with respect to, any breach or default thereunder, in any such case, in which such breach or default, individually or in the aggregate, would have a Material Adverse Effect on the Business.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Fah Co Inc), Merger Agreement (Avis Rent a Car Inc)
Material Contracts. (a) Except (iSection 5.13(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement Arch Disclosure Letter sets forth a correct and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, complete list as of the date hereof, neither the Company nor any Subsidiary hereof of all of the Company following types of Contracts used or held for use primarily in or related primarily to the operation or conduct of the Arch Business that are to be transferred to and assumed by the JV Entities as of the Closing Date and to which Arch or any of its Affiliates is a party or to which any of the Arch Contributed Assets or is bound by the Arch Transferred Subsidiaries are subject, in each case other than any Excluded Assets (each, an “Arch Material Contract:”):
(i) that any loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other similar agreement pursuant to which any material Indebtedness for borrowed money is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)outstanding or may be incurred;
(ii) that any Contract (other than any coal supply agreement, or purchase order or commitment to sell or offer to sell coal) with a remaining term of more than one year from the date hereof which is with expected to involve the ten (10) largest customers payment of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders an amount in excess of $10,000,000 or statements receipt of work or invoices entered into an amount in excess of $10,000,000 in the ordinary course aggregate over the remaining term of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)such Contract;
(iii) that is with the ten (10) largest vendors any joint venture, partnership or similar organizational Contract involving a sharing of profits or losses related to all or any portion of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)Arch Business;
(iv) that is a Government Contractany Contract granting to any Person an option, right of first offer or right of first refusal to purchase or acquire any Arch Contributed Asset (other than purchase options for additional coal volumes);
(v) evidencing any Contract that (A) provides for exclusive rights for the benefit of any third party, (B) grants “most favored nation” status to any third party or (C) requires Arch or any of its Affiliates to provide any minimum level of service, in each case which (1) are, or in a capital expenditure for manner which future payments are required in excess is, material to the Arch Business taken as a whole and (2) may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of $5,000,000its Affiliates of any material penalty;
(vi) relating to any Contract that restricts in any material respect the disposition or acquisition ability of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company Arch or its Subsidiaries have material continuing obligations;
Affiliates (vii) containing (A) a covenant or other provision limiting could restrict in any material respect the ability of the Company or any Subsidiary of the Company JV Entities) to compete or engage in any line of business or to compete with any Person in any geographic areageographical area and which may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(vii) any Contract with a remaining term of more than one year from the date hereof that could require the JV Entities to purchase all (or a specified portion of) their total requirements of any product or service from a third party or that contains “take or pay” provisions and which (A) is expected to involve the payment of an amount in excess of $10,000,000 in the aggregate during the fiscal year ending December 31, 2019 or any future fiscal year and (B) may not be terminated (including such restrictive provisions) by Arch or its Affiliates on less than 90 days’ notice without payment by Arch or any of its Affiliates of any material penalty;
(viii) any Contract relating to the disposition or acquisition by Arch or any of its Affiliates of any material business or any material amounts of assets (other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” with obligations remaining to be performed or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits Liabilities continuing after the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)date hereof;
(ix) any hedging, swap, derivativelease or agreement (including capital lease arrangements) under which Arch or any of its Affiliates is lessee of, or similar Contractholds or operates, any Tangible Personal Property for which the annual rental costs exceed $10,000,000;
(x) that is a license (any coal supply agreement, or a covenantpurchase order or commitment to sell or offer to sell coal, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, with a remaining term of more than three years from the date hereof or (B) pursuant to which the Company with remaining deliverable tonnage of (1) 10,000,000 tons from any mines located in Wyoming that are set forth on Schedule 1.1(a) or (2) 1,500,000 tons from any Subsidiary received licensing revenues for the fiscal year ended January 31mines located in Colorado that are set forth on Schedule 1.1(a);
(xi) any Contract involving swaps, 2024 in excess futures, derivatives or similar instruments, regardless of $1,000,000value, other than non-exclusive licenses granted to customers except such Contracts entered into as a hedging activity in the ordinary course of business, and/or (C) that is otherwise material to the Company business consistent with Arch’s past practice and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeinternal policy guidelines;
(xii) that any Contract pursuant to which a Governmental Authority is a Company Real Property Lease providing tax abatements or other similar economic incentives in connection with remaining obligations in excess of $1,000,000;the Arch Business; and
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) other Contract that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require material to the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesArch Business.
(b) Each Contract of the type described above Arch and its Affiliates have duly performed and complied in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “all material respects with their respective obligations under each Arch Material Contract.” Except for Material Contracts that have expired . None of Arch or terminated by their terms, all any of the Material Contracts are (A) valid and binding on the Company its Affiliates has received any notice of termination or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each default from any other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any such Arch Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021Arch, no counterparty other party to any such Arch Material Contract is in default of its obligations thereunder.
(c) Except as set forth on Section 5.13(c) of the Arch Disclosure Letter, Arch has (A) canceled or otherwise terminated, or threatened in writing made available to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount Peabody true and complete copies of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Arch Material Adverse EffectContract.
Appears in 2 contracts
Sources: Implementation Agreement (Arch Coal Inc), Implementation Agreement (Peabody Energy Corp)
Material Contracts. (a) Except (i) as for this Agreement, the Contracts filed as exhibits to the Company SEC DocumentsReports, (ii) for this Agreement and the other agreements entered into Contracts listed in connection with Subsections (i) through (xx) of Section 3.16(a) of the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule, as of the date hereof, neither the Company nor any Subsidiary none of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party to or bound by the following Contracts:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company or any other partnership, joint venture, strategic collaboration, global affiliation or business cooperation, limited liability company or similar arrangement;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business pursuant business) or advance to which (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any such loan, advance or investment for more than US$5,000,000;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries have material continuing obligationsof more than US$5,000,000;
(v) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000;
(vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances;
(vii) containing any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(Aviii) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a covenant fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) any Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other provision limiting dispute with amount in controversy greater than US$5,000,000;
(x) any Contract involving a standstill or similar arrangement;
(xi) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any Subsidiary of the Company its Subsidiaries to compete or engage in any line of business or to compete with any Person in any geographic area, industry or line of business;
(xii) any Contract for the employment of any senior executive officer;
(xiii) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any customary employee non-solicitation payment in excess of US$5,000,000 to be made by the Company or no-hire clauses entered into any of its Subsidiaries in any calendar year or (B) the ordinary course value of businessthe outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right pledging of first refusal or right of first offer or similar right that limits the ability share capital of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) issuance of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which guarantee by the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024Subsidiaries;
(xivxvi) that is any Contract providing for (A) a settlementlicense, conciliation covenant not to s▇▇ or similar Contract (x) with other right granted by any Governmental Authority entered into since February 1, 2021, (y) which would require Third Party under any Intellectual Property to the Company or any of its Subsidiaries Subsidiaries, (B) a license, covenant not to pay consideration of more than $1,000,000 after the date of this Agreement s▇▇ or (z) that subjects other right granted by the Company or any of its Subsidiaries to any material ongoing requirements or restrictions Third Party under any Intellectual Property, (other than ordinary course confidentiality requirements or restrictions);
(xvC) an indemnity of any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or relating to dispositionviolation of any Intellectual Property right, voting or dividends with respect (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any equity securities person by reason of the ownership, use, sale or disposition of Intellectual Property, in each case of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries; or, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xvixix) is each Control Agreement and any other any Contract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an affiliate “Operating Subsidiary”), (B) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Person Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed under Item 404 if the Form 20-F were filed as of Regulation S-K promulgated under the Exchange Actdate hereof); or
(xxi) any other Contract which, other than any if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract solely among described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, SEC Reports is referred to herein as a “Material Contract.” ”
(b) Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither : (i) each Material Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Company nor any Subsidiary Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company has, and, to the Knowledge knowledge of the Company, none of the other parties thereto haveno counterparty, violated any provision is or is alleged to be in breach or violation of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts ; (or failures to activ) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge knowledge of the Company, no person intends to terminate any Material Contract; and (v) neither the Company execution of this Agreement nor the consummation of any Subsidiary of the Company has received written notice of Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the foregoing. To the Knowledge rights of the Company, since February 1, 2021, no counterparty to any Group Company under any Material Contract Contract. The Company has (A) canceled furnished or otherwise terminatedmade available to Parent true and complete copies of all Material Contracts, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or including any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectamendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) Except (i) as filed as exhibits to As of the Company SEC Documentsdate of this Agreement, (ii) except for this Agreement and or the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Benefit Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or bound by: (A) any Contract relating to indebtedness for borrowed money or any financial guaranty in excess of $100,000; (B) any Contract that limits the ability of the Company or any of its Subsidiaries to compete in any business line or in any geographic area; (C) any Contract that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument; (D) any Contract that involved expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the last fiscal year or is bound expected to involve expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the next fiscal year; (E) any Contract that involved, since January 1, 2004, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person (other than acquisitions or dispositions of assets in the ordinary course of business, including acquisitions and dispositions of inventory); (F) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (G) any material joint venture or partnership Contract:
; (iH) any Contract that is purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or business; and (I) any Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange ActSEC (all contracts of the type described in this Section 4.19(a) (being referred to herein as “Company Material Contracts”);.
(iib) that is with the ten (10Section 4.19(b) largest customers of the Company Disclosure Schedule sets forth a true and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors complete list of the Company Material Contracts. True, correct and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost complete copies have been made available to Parent of goods and services paid all Company Material Contracts to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during is a party; provided, however, that the fiscal year ended January 31Company need not provide to Parent any Company Material Contracts or portions thereof that contain confidentiality provisions or are otherwise subject to restrictions on disclosure including, 2024;without limitation, restrictions relating to security clearance.
(xivc) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require Neither the Company or nor any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities Subsidiary of the Company or any of its Subsidiaries or relating nor, to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary knowledge of the Company, any other party, is in material breach of or material default under the terms of any Contract that would qualify as a Company Material Contract pursuant to Section 4.19(a)(A), (C), (D), (G) or (I) (each, a “Specified Contract”). Except as would not reasonably be expected to have a Company Material Adverse Effect, neither the case may be, andCompany nor any Subsidiary of the Company nor, to the Knowledge knowledge of the Company, each any other party theretoparty, and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles material breach of equity and (ii) or material default under the terms of any Company Material Contract that is not a Specified Contract. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither be material to the Company nor any Subsidiary of the Company hasand its Subsidiaries, taken as a whole, each Specified Contract, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, as would not reasonably be expected to have a Company Material Adverse Effect Effect, each Company Material Contract that is not a Specified Contract or a Contract of the type referred to in Section 4.19(a)(B) or (H), is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, as of February 1, 2021, to the Knowledge knowledge of the Company, neither of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company nor any Subsidiary discretion of the Company has received written notice of court before which any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably proceeding therefor may be expected to have a Material Adverse Effectbrought.
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Material Contracts. (a) Except (i) as filed as exhibits to Section 6.1(A)(t)(i) of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Allergan Disclosure Schedule sets forth a list as of the date hereof, neither the Company nor any Subsidiary of this Agreement of each of the Company is a party to or is bound by following Contracts (other than any Contract:
(iAllergan Benefit Plan) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company Allergan or any of its Subsidiaries outside is a party or by which it is bound (each such Contract required to be so listed, and each of the ordinary course following types of business Contracts (other than any Allergan Benefit Plan) described below to which Allergan or any of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, an “Allergan Material Contract”):
(A) each (i) acquisition or divestiture Contract (including any Contracts pursuant to which any member of the Company Allergan Group has transferred or its Subsidiaries have material continuing obligations;
agreed to transfer ownership of any Intellectual Property) and (viiii) containing license (Aincluding any in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a covenant maximum potential value (or which otherwise requires the receipt or making of payments) in excess of $100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other provision limiting in any material respect the ability of the Company contingent payment or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessvalue obligations), (By) “most favored nation”, “exclusivity” or similar provisions, (C) a right involves the issuance of first refusal or right any Equity Securities of first offer or similar right that limits the ability of the Company Allergan or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after following the date of this Agreement or (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that subjects is material to Allergan and its Subsidiaries, taken as a whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100 million;
(C) any Contract that (x) limits or purports to limit, in any material respect, the Company freedom of Allergan or any of its Subsidiaries 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 ongoing requirements respect, the freedom of AbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions (other than ordinary course confidentiality requirements that restrict or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating purport to any equity securities of the Company restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(D) any Contract relating to dispositionthird party indebtedness for borrowed money in excess of $100 million (whether incurred, voting assumed, guaranteed or secured by any asset) of Allergan or any of its Subsidiaries;
(E) any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other similar agreement, which is material to the Allergan Group, taken as a whole;
(G) any Contracts or other transactions with any (A) executive officer or director of Allergan, or (B) affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or beneficial owner;
(H) any Contract involving the settlement of any Action or threatened Action (or series of related Actions) (A) which (x) will involve payments by Allergan or any of its Subsidiaries after the date hereof, or involved such payments, in excess of $100 million or (y) will impose, or imposed, materially burdensome monitoring or reporting obligations by Allergan or any of its Subsidiaries outside the ordinary course of business or material restrictions on Allergan or any Subsidiary of Allergan (or, following the Completion, on AbbVie or any Subsidiary of AbbVie) or (B) which impose material restrictions on the use of any material Intellectual Property other than, in the case of this clause (B), the granting of non-exclusive licenses or sublicenses or the granting of exclusive licenses in connection with the settlement of ANDA-related litigation in the ordinary course of business;
(I) any stockholders, investors rights, registration rights or similar agreements or arrangements with respect to any equity securities the Equity Securities of the Company Allergan or any of its Subsidiaries; orand
(xviJ) is with an affiliate or any other Person that would be Contract required to be disclosed under filed by Allergan pursuant to Item 404 601(b)(10) of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.K.
(bii) Each Contract All of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Allergan Material Contracts that have expired or terminated by their termsare, all of subject to the Material Contracts are Equitable Exceptions, (A) valid and binding on the Company obligations of Allergan or the applicable a Subsidiary of the Company, Allergan (as the case may be, ) and, to the Knowledge knowledge of Allergan, each of the Company, each other party parties thereto, and (B) in full force and effecteffect and enforceable in accordance with their respective terms against Allergan or its Subsidiaries (as the case may be) and, to the knowledge of Allergan, each of the other parties thereto, in each case of (A) and (B), except (i) for such Allergan Material Contracts that are terminated after the date of this Agreement in accordance with their respective terms, other than as may a result of a default or breach by Allergan or any of its Subsidiaries of any of the provisions thereof, and except where the failure to be limited by bankruptcy, insolvency, moratorium valid and other similar Applicable Law affecting creditors’ rights generally binding obligations and by general principles of equity in full force and (ii) as effect and enforceable has not had and would notnot reasonably be expected to have, individually or in the aggregate, an Allergan Material Adverse Effect. To the knowledge of Allergan, as of the date hereof, no Person is seeking to terminate or challenging the validity or enforceability of any Allergan Material Contract, except such terminations or challenges which have not had and would not reasonably be expected to have a Company have, individually or in the aggregate, an Allergan Material Adverse Effect. Neither the Company Allergan nor any Subsidiary of its Subsidiaries, nor, as of the Company has, anddate hereof, to the Knowledge knowledge of the CompanyAllergan, none any of the other parties thereto have, has violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach default under any provision of, and as of the date hereof neither Allergan nor any of its Subsidiaries has received written notice that it has violated or default defaulted under, the provisions of any Allergan Material Contract, except in each case for those violations, acts violations and defaults (or failures potential defaults) which have not had and would not reasonably be expected to act) and defaults whichhave, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a an Allergan Material Adverse Effect. Allergan has made available to AbbVie true and complete copies of each Allergan Material Contract as in effect as of the date hereof.
Appears in 2 contracts
Sources: Transaction Agreement (Allergan PLC), Transaction Agreement (AbbVie Inc.)
Material Contracts. (a) Except (iSection 4.12(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement Disclosure Schedule sets forth a complete and accurate list of binding Contracts to which any Company Entity is a party falling within the other agreements entered into in connection with the transactions contemplated hereby following categories and (iii) for Company Employee Plans, existing as of the date hereof, neither and in each case excluding any Contracts to which only Company Entities are party (collectively, the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:“Material Contracts”):
(i) that is a “material contract” any Contract (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, other than purchase orders or statements of work or invoices entered into in the ordinary course of businessOrdinary Course) with a Key Supplier or a Key Customer, and other similar Contracts that are ancillary to Contracts providing for, or pursuant to which would reasonably be expected to result in, either (A) annual payments by the Company Entities of $5 million or more, (B) annual revenue is paid or payable to the Company Entities of $5 million or its Subsidiaries)more or (C) revenue to the Company Entities of $10 million or more over the term of the Contract;
(iiiii) that is with the ten any Contract (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, other than purchase orders or statements of work or invoices entered into in the ordinary course Ordinary Course) not with a Key Supplier or a Key Customer, for the purchase, sale, lease or other disposition of businessreal or personal property, and services, equipment or other similar Contracts that are ancillary to Contracts tangible assets or materials providing for, or pursuant to which cost of goods and services is paid or payable would reasonably be expected to result in, either (A) annual payments by the Company);
Company Entities of $10 million or more, (ivB) that is a Government annual revenue to the Company Entities of $10 million or more or (C) revenue to the Company Entities of $10 million or more over the term of the Contract;
(viii) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing Contract establishing (A) a covenant any Material Joint Venture or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”any other joint venture, “exclusivity” strategic alliance or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, teaming arrangement that is or would reasonably be expected to be material to the Company and its SubsidiariesEntities, taken as a whole;
(viiiiv) relating to or evidencing indebtedness any Government Contract providing for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee either (A) annual payments by the Company Entities of $10 million or more or (B) annual revenue to the Company Entities of its Subsidiaries $10 million or more;
(v) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which any Company Entity has material outstanding obligations;
(vi) the obligations Credit Agreements and any other Contract to which any Company Entity is obligor or guarantor relating to Indebtedness, except any such Contract with an aggregate outstanding principal amount not exceeding $5 million;
(vii) any Contract under which any Company Entity (A) has made or agreed to make any loan, advance or assignment of payment to, or (B) made any capital contribution to, or other investment in, any Person (in each caseother than any Company Entity), excluding, for the avoidance of doubt, intercompany loans between the Company and or guaranteed or agreed to guarantee any of its wholly-owned Subsidiaries the foregoing, except any such Contract with an aggregate amount of such an obligation not exceeding $10 million;
(viii) any Contract that obligates any Company Entity to make any capital expenditure or between or among any wholly-owned Subsidiaries investment in excess of the Company)$10 million;
(ix) any hedgingContract granting any Person (other than any other Company Entity) a Lien, swapin each case, derivativeother than a Permitted Lien, on material assets or similar Contractproperties of any Company Entity;
(x) the Company Name License Agreements and any other Contract that is a license (or a covenant, consent or other rights in or material to use Intellectual Property) granted by the business of any Company or Entity and pursuant to which any Subsidiary of the Company to Company Intellectual Property Entity: (A) obtains a license to, a covenant not to be sued under, or other right to use any Intellectual Property Right of a third party (other than (1) licenses for off-the-shelf software generally available to the public on an non-discriminatory pricing terms, (2) non-exclusive basislicenses of Intellectual Property Rights that are not material to the business of any Company Entity and that are incidental to the transaction contemplated by the Contracts containing such licenses, where the purpose of such Contracts is primarily something other than the license of such Intellectual Property Rights, or (3) licenses for Open Source software) or (B) pursuant grants a license to, a covenant not to which the Company be sued under, or other right to use any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, Company-Owned Intellectual Property Right (other than non-exclusive licenses granted to customers in the ordinary course Ordinary Course that are not material to the business of businessany Company Entity and that are incidental to the transaction contemplated by the Contracts containing such licenses, and/or where the purpose of such Contracts is primarily something other than the license of such Company Intellectual Property Rights);
(Cxi) any Labor Agreement;
(xii) any Contract with a Key Employee providing for compensation (including deferred compensation);
(xiii) any Contract providing for indemnification obligations of any Company Entity not entered into in the Ordinary Course;
(xiv) any Contract providing for “most favored customer” or similar terms that limit any Company Entity’s right to set pricing independently of any other Contract, in a manner that is otherwise or would reasonably be expected to be material to the Company and its Subsidiaries Entities, taken as a whole;
(xixv) any Contract granting a third Person any right of first refusal, right of first offer, right of first negotiation or similar right in a manner that is a license (or a covenant, consent or other rights in or would reasonably be expected to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise be material to the Company and its Subsidiaries Entities, taken as a whole;
(xiixvi) any Contract containing covenants expressly limiting in any material respect the freedom of any Company Entity to compete with any Person or operate in any jurisdiction, or containing any exclusivity, standstill or non-solicitation (other than relating to employees) obligation binding on any of the Company Entities;
(xvii) any Contract that prohibits or restricts in any material respect the right of any Company Entity to make, sell, supply, market or distribute any products or services sold or provided by any Company Entity;
(xviii) any Contract with a Seller or any of its Affiliates (other than the Company Entities, Material Joint Ventures or Other Joint Ventures) (“Intercompany Agreements”);
(xix) any Contract that provides for potential revenue to the Company Entities of $10 million or more over the term of the Contract;
(xx) any Contract involving a resolution or settlement of any Action where the amount paid in the resolution or settlement exceeds $20 million; or
(xxi) any Real Property Lease that is a lease, sublease or other occupancy agreement providing for the lease or sublease by a Company Real Property Lease with remaining obligations Entity of real property at an annual base rent in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries5 million.
(b) Each Contract of the type described above in Section 4.15(a)Sellers have made available to Buyer a true, whether correct and complete copy (including all amendments or not set forth in Section 4.15(amodifications thereto) of the Company Disclosure Schedule, is referred to herein as a “each Material Contract.” Except for . Each Material Contracts that have expired or terminated by their termsContract is a legal, all of the Material Contracts are (A) valid and binding on the agreement of one or more Company or Entities, and is in full force and effect, and is enforceable against the applicable Subsidiary of the Company, as the case may beCompany Entity party thereto, and, to the Knowledge knowledge of the CompanySellers, each other party thereto, and in accordance with the terms thereof (B) subject to the Remedies Exception). No Company Entity or, to the knowledge of Sellers, any other party is, or is alleged to be, in full force and effectmaterial default or breach under the terms of any such Material Contract, except (i) as may for any such defaults or breaches which would not reasonably be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notexpected to be, individually or in the aggregate, material to the Company Entities, taken as a whole. Without limitation of the foregoing, no Credit Agreement Default has occurred that would reasonably be expected to have result in a Company Material Adverse Effect. Neither the Company nor any Subsidiary failure of the Company hascondition set forth in Section 8.01(b)(iv); provided that, and, to the Knowledge solely for purposes of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default underthis Section 4.12(b), the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or following phrase shall be disregarded in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect anddefinition of Credit Agreement Default: “of which Sellers have, as of February 1such date of determination, 2021, to the (i) Actual Knowledge of the Company, neither the Company nor any Subsidiary of the Company has Sellers or (ii) received written notice of any of from the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary Administrative Agent (as applicable) or defined in the applicable Credit Agreement referenced in this clause (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effecta)).”
Appears in 2 contracts
Sources: Equity Purchase Agreement (Cameco Corp), Equity Purchase Agreement (Brookfield Business Corp)
Material Contracts. (a) Except (i) as filed as exhibits to set forth in Section 3.13 of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule, as of the date hereof, neither there are no Contracts included in the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
Purchased Assets (i) containing covenants that is limit or purport to limit the ability of a “material contract” (as such term is defined Seller or Transferred Entity to compete in Item 601(b)(10) any line of Regulation S-K business or with any Person, industry or geographical area or during any period of time, that relates to the Exchange Act);
Business; (ii) which expressly creates a partnership or joint venture or similar arrangement that is with relates to the ten (10) largest customers operation of the Company Business; (iii) for the sale or exclusive license of any material assets of the Business other than Inventory or Products or for the furnishing of services by a Seller or Transferred Entity other than in the ordinary course of business consistent with past practice; (iv) which is a collective bargaining agreement, employee association agreement or other agreement with any labor union, employee representative group, works council or similar collection of employees; (v) between or among a Seller or Transferred Entity, on the one hand, and its Subsidiaries during one or more Affiliates of a Seller (other than another Seller or Transferred Entity), on the other hand; (vi) under which the Business has made payments in excess of $2,000,000 in the last fiscal year ended January 31, 2024 or anticipate making payments in excess of $2,000,000 in the current fiscal year (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, other than purchase orders or statements invoices entered into in the ordinary course of work business and ordinary course trade payables and trade receivables negotiated on an arms’ length basis); (vii) involves the sale, development, use or license of any Intellectual Property that is primarily used in the conduct of and material to the Business other than non-exclusive licenses entered into in the ordinary course of business; (viii) under which the Business received payments in excess of $2,000,000 in the last fiscal year or anticipates receiving payments in excess of $2,000,000 in the current fiscal year (other than sales orders or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid ); or payable (ix) containing any “take-or-pay” or “requirements” provision requiring any Seller (relating to the Company Business) or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost any Transferred Entity to make a minimum payment for or purchase a minimum quantity of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreementsfrom third party suppliers irrespective of usage, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar except for Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
under this clause (ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in which require payments by or to use Intellectual Property) granted by the Company or any Subsidiary Business of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more less than $1,000,000 after the date of this Agreement or per annum. Each such contract described in clauses (zi)-(ix) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all ”
(b) As of the date hereof (i) Each Seller and Transferred Entity is not in material breach of or default under any Material Contracts are (A) valid and binding on the Company Contract to which such Seller or the applicable Subsidiary of the Company, as the case may be, Transferred Entity is a party and, to the Knowledge of the CompanyHoneywell, each no other party theretoto any Material Contract is in breach thereof or default thereunder, (ii) o the Knowledge of Honeywell, neither any Seller nor any Transferred Entity has received any written notice or claim of material default under any Material Contract or, as of the date of this Agreement, any written notice of an intention to terminate or challenge the validity or enforceability of any Material Contract and to the Knowledge of Honeywell, no such action is threatened, and (Biii) to the Knowledge of Honeywell, no event has occurred that, with or without notice or lapse of time or both, would result in full force a material breach or default under any Material Contract by Honeywell. Sellers have Made Available to Purchaser true and effectcomplete copies of each Material Contract, except including all material amendments, modifications, supplements, exhibits, schedules, addenda and restatements thereto and thereof. Sellers have not posted any surety bond or letter of credit with respect to the Business.
(ic) as may be limited by bankruptcy, insolvency, moratorium Each Material Contract is valid and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in binding on the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, applicable Seller and/or Transferred Entity and, to the Knowledge of the CompanySellers, none of on the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, subject to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectEnforceability Exceptions.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Honeywell International Inc), Stock and Asset Purchase Agreement (Be Aerospace Inc)
Material Contracts. (a) Except (iSection 4.19(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule sets forth, as of the date hereofof this Agreement, neither a correct and complete list of each of the following Contracts to which the Company nor or any Subsidiary of the Company its Subsidiaries is a party to party, or by which any of their respective properties or assets is bound by any Contractbound:
(i) that is a any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of promulgated by the Exchange ActSEC) (other than any Company Benefit Plan);
(ii) any Contract that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in imposes any material respect restriction on the ability of the Company right or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge compete with any other Person or otherwise dispose of assets, rights solicit any client or properties or customer;
(Diii) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of any Contract that obligates the Company or its Subsidiaries to conduct business with any third party on a preferential or exclusive basis and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viiiiv) any Contract relating to Indebtedness (other than intercompany indebtedness owed by the Company or evidencing indebtedness for borrowed moneyany wholly owned Subsidiary to any other wholly owned Subsidiary, debt securities, warrants or other rights by any wholly owned Subsidiary to acquire any debt securities, the Company) of the Company or any Subsidiary of the Company, its Subsidiaries having an outstanding principal amount in excess of $5,000,000 or any guarantee by that grants a Lien (other than a Permitted Lien) on properties or assets of the Company or any of its Subsidiaries of the obligations of Subsidiaries;
(v) any Person Contract with respect to an interest, rate, currency or other swap or derivative transaction (in each case, excluding, for the avoidance of doubt, intercompany loans other than those between the Company and its Subsidiaries) with a fair value in excess of $5,000,000;
(vi) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or its wholly-Subsidiaries;
(vii) any Contract entered into on or after January 1, 2024 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, and with any outstanding obligations as of the date of this Agreement, in each case with a value in excess of $5,000,000;
(viii) any material joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or between or among any wholly-the Company’s wholly owned Subsidiaries or any organizational documents of the Company)’s wholly owned Subsidiaries;
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) Contract pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues has continuing “earn-out” or similar obligations that could result in payments in excess of $1,000,000 during 5,000,000 in the fiscal year ended January 31aggregate;
(x) any Contract relating to Program Rights under which it would reasonably be expected that the Company and its Subsidiaries would make annual payments in excess of $3,000,000 per year;
(xi) any network affiliation Contract (or similar Contract) with ABC, 2024CBS, Fox, NBC, CW, MyNetworkTV or Spanish language networks;
(xii) any Contract that is a material Sharing Agreement and any related option agreement (other than those among the Company and its Subsidiaries);
(xiii) any Contract that is a channel sharing agreement with a third party or parties with respect to the sharing of spectrum for the operation of two (2) or more separately owned television stations;
(xiv) any Contract relating to retransmission or distribution by any MVPD that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require reported more than 25,000 paid subscribers to the Company or any of and its Subsidiaries for May 2025 with respect to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the at least one Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);Station; and
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is Contract with an affiliate or other Person that would be required to be disclosed by the Company under Item 404 404(a) of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among . All contracts of the types referred to in clauses (i) through (xv) above are referred to herein as “Company and its wholly-owned SubsidiariesMaterial Contracts.”
(b) Each Contract of Neither the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) Company nor any Subsidiary of the Company Disclosure Schedule, is referred to herein as a “in breach of or default in any respect under the terms of any Company Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, Contract and, to the Knowledge of the Company, each no other party theretoto any Company Material Contract is in breach of or default in any respect under the terms of any Company Material Contract, and (B) no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, 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 or result in full force and effectthe termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any benefit under the terms of any Company Material Contract, in each case except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any each Company Material Contract has (Ai) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with is a valid and binding obligation of the Company or any the Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company that is party thereto and its Subsidiaries of each other thanparty thereto, and (ii) is in full force and effect, subject to the Enforceability Exceptions, in each case, case except as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the Company’s Knowledge, 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 a Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. True and complete copies of the Company Material Contracts and any material amendments thereto have been made available to Representatives of Parent prior to the date of this Agreement, except if providing any such Contract would reasonably be expected to violate any applicable Law or such Company Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Tegna Inc), Merger Agreement (Nexstar Media Group, Inc.)
Material Contracts. (a) Except (i) as for the contracts described in or filed as exhibits an exhibit to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into Documents or set forth in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as Section 3.13 or Section 3.18 of the date hereofCompany Disclosure Schedule (collectively, the “Material Contracts”), neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractof the following:
(i) that is a “material contract” (as such term is defined any contract or agreement entered into other than in Item 601(b)(10) the ordinary course of Regulation S-K business consistent with past practice for the acquisition of the Exchange Act)securities of or any material portion of the assets of any other Person or entity;
(ii) that is with any contract or agreement for the ten (10) largest customers purchase of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 100,000 which cannot be cancelled by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company without penalty or its Subsidiaries have material continuing obligationsfurther payment or without more than 45 days’ notice;
(viiiii) containing (A) a covenant any contract, agreement or instrument in excess of $100,000 that expires or may be renewed at the option of any Person other provision limiting in any material respect the ability of the than Company or any Subsidiary of its Subsidiaries so as to expire more than one year after the date of this Agreement;
(iv) any material contract with any independent contractor or consultant (or similar arrangement) which is not cancelable without penalty and without more than thirty (30) days’ notice;
(v) 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 Company or any of its Subsidiaries is a lender, borrower or guarantor;
(vi) any contract or agreement limiting the freedom of Company or any of its Subsidiaries or any of their respective employees to compete or engage in any line of business or to compete with any other Person;
(vii) any contract or agreement with any Affiliate of Company;
(viii) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses those entered into in the ordinary course of business;
(ix) any material agreement which would be terminable other than by Company or its Subsidiaries or under which a payment obligation would arise or be accelerated, in each case as a result of the consummation of the transactions contemplated by this Agreement;
(Bx) “most favored nation”any material alliance, “exclusivity” cooperation, joint venture, stockholders’ partnership or similar provisionsagreement;
(xi) any broker, distributor, dealer, agency, sales promotion, market research, market consulting or advertising agreement involving in excess of $100,000 (Cother than software licenses entered into in the ordinary course of business);
(xii) a right any material research, development, sales representative, marketing or reseller agreement, or any service, support or maintenance agreement related to the business or technology of first refusal Company or any of its respective Subsidiaries;
(xiii) any material 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 first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive software licenses granted to customers entered into in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024);
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements agreement that affects or restrictions (other than ordinary course confidentiality requirements relates to Company IP, including, without limitation, any material agreement pursuant to which any person or restrictions)entity is authorized to use or has an ownership or security interest in any Company IP;
(xv) any stockholders’ agreement, proxy, voting trust material contract or agreement which would require any consent or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities approval of a counterparty as a result of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities consummation of the Company or any of its Subsidiariestransactions contemplated by this Agreement; orand
(xvi) is with an affiliate or any other Person that contract the loss of which would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the have a Company and its wholly-owned SubsidiariesMaterial Adverse Effect.
(b) Each Contract Company and each of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that its Subsidiaries have expired or terminated by their terms, performed all of the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged to be in default in respect of, each Material Contracts are (A) valid and binding on the Contract to which Company or the applicable any Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other is a party thereto, and (B) in full force and effector by which Company or any Subsidiary is bound, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither Each of the Company nor any Subsidiary Material Contracts is in full force and effect, without amendment (other than as disclosed in Section 3.13 of the Company hasDisclosure Schedule), andand there exists no default or event of default or event, occurrence, condition or act, with respect to Company or any of its Subsidiaries or, to the Knowledge knowledge of Company, with respect to any other contracting party, which, with the giving of notice, the lapse of the Company, none time or the happening of the any other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition existscondition, which (with would become a default or without notice, lapse event of time or both) would constitute a breach of or default under, the provisions of under any Material Contract, except in each case for those violationsexcept, acts (or failures to act) and defaults whichas would not, individually or in the aggregate, would not reasonably be expected material to Company. True, correct and complete copies of all Material Contracts have a Company Material Adverse Effect and, been furnished or made available to Parent or filed as of February 1, 2021, exhibits to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectSEC Documents.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Palmsource Inc)
Material Contracts. (a) Except (i) as Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansReports, as of the date hereof, neither the Company nor any Subsidiary none of the Company or its Subsidiaries is a party to or is bound by any Contractby:
(iA) any Contract that is a “material contract” (as such term is defined in would be required to be filed by the Company pursuant to Item 601(b)(10) 4 of Regulation Sthe Instructions to Exhibits of Form 20-K of F under the Exchange Act);
(iiB) that is with any Contract involving the ten (10) largest customers payment or receipt of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 amounts by the Company or any of its Subsidiaries outside Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of the ordinary course of business pursuant to which the Company or more than RMB 50,000,000 in any calendar year on its Subsidiaries have material continuing obligationsface;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) any Contract that contains a right of first refusal or right of first offer put, call or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess could be required to purchase or sell, as applicable, any equity interests of $1,000,000 during the fiscal year ended January 31, 2024any Person or assets that have a fair market value or purchase price of more than RMB 30,000,000;
(xivD) that is a settlementany Contract relating to the formation, conciliation creation, operation, management or similar control of any joint venture;
(E) any Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require between the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement and any director or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities executive officer of the Company or any of its Subsidiaries Person beneficially owning five percent or relating to disposition, voting or dividends with respect to any equity securities more of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be outstanding Shares required to be disclosed under pursuant to Item 404 7B or Item 19 of Regulation SForm 20-K promulgated F under the Exchange Act, ; and
(F) any non-competition Contract or other than Contract that limits or purports to limit in any Contract solely among material respect the type of business in which the Company and or its wholly-owned Subsidiaries.
(b) Each Contract of Subsidiaries may engage, the type described above in Section 4.15(a), whether of goods or not set forth in Section 4.15(a) of services which the Company Disclosure Scheduleor its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any of them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the exception of being filed as an exhibit to the Company Reports is referred to herein as a “Material Contract”.”
(ii) Except for as is not, individually or in the aggregate, a Material Contracts that have expired or terminated by their termsAdverse Effect, all (A) each of the Material Contracts are (A) is valid and binding on the Company or the applicable Subsidiary of the Companyits Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium effect subject to the Bankruptcy and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity Equity Exception; and (iiB) as would not, individually there is no breach or in the aggregate, reasonably be expected to have a Company default under any Material Adverse Effect. Neither Contracts by the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, its Subsidiaries and no event or condition exists, which (has occurred that with or without notice, the lapse of time or both) the giving of notice or both would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with thereunder by the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectSubsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
Material Contracts. (a) Except (iSection 4.14(a) as filed as exhibits of the Purchaser Disclosure Schedule sets forth a list of each of the following Contracts to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planswhich, as of the date hereofof this Agreement, neither the Company nor Purchaser or any Subsidiary of the Company its Subsidiaries is a party to or is bound by any (each, a “Purchaser Material Contract:”):
(i) that is a any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange ActSEC as determined as of the date of this Agreement);
(ii) that is with each Contract (A) not to (or otherwise restricting or limiting the ten (10) largest customers ability of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company Purchaser or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(viito) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation area or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits to restrict the ability of the Company Purchaser or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, conduct business in each case, that is material to the Company and its Subsidiaries, taken as a wholeany geographic area;
(viiiiii) relating to each Contract (other than any Purchaser Benefit Plan) providing for or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company resulting in payments by Purchaser or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries that exceeded $250,000 in the calendar year ended December 31, 2023, or that is reasonably likely to require, during the remaining term of the obligations such Contract, annual payments by Purchaser or any of its Subsidiaries that exceed $250,000;
(iv) all Contracts granting to any Person an option or a first refusal, first offer, or similar preferential right to purchase or acquire any Purchaser Assets;
(v) all material Contracts (A) for the granting or receiving of a license, sublicense or franchise (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and including any of its wholly-owned Subsidiaries or between or among such Contracts relating to any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by providing for or resulting in payment over $250,000 per year or (B) under which any Person is obligated to pay or has the Company right to receive a royalty, license fee, franchise fee or any Subsidiary similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment over $250,000, in each case of the Company to Company Intellectual Property clause (A) on an exclusive basis, and (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000), other than agreements with employees, non-exclusive licenses granted to customers in the ordinary course of businessPurchaser’s or its Subsidiaries’ customers, and/or (C) and non-exclusive licenses to commercially available, off-the-shelf Software that is otherwise material to the Company and its Subsidiaries taken as a wholehave been granted on standardized, generally available terms;
(xivi) that is a license (or a covenantall partnerships, consent joint ventures, or other rights in similar agreements or to use Intellectual Propertyarrangements;
(vii) any agreement with any director, officer, or stockholder of Third Party Rights granted to the Company Purchaser or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) thereof that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed described under Item 404 of Regulation S-K promulgated under of the Exchange ActSEC in the Purchaser SEC Reports;
(viii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed, or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(ix) any agreement for the disposition or acquisition by Purchaser or any of its Subsidiaries with material obligations of Purchaser or any of its Subsidiaries (other than confidentiality obligations) remaining to be performed, or material Liabilities of Purchaser or any Contract solely among of its Subsidiaries continuing, after the Company and its wholly-owned Subsidiariesdate of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business;
(x) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law; and
(xi) all material agreements with any Governmental Authority.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a4.14(b) of the Purchaser Disclosure Schedule sets forth all Contracts granting to any Person an option or a first refusal, first offer, or similar preferential right to purchase or acquire any material assets of Purchaser, a true and complete copy of which have been made available to the Company.
(c) A true and complete copy of each Purchaser Material Contract (including any related amendments) entered into before the date of this Agreement has been filed as an exhibit (by reference or otherwise) to the Purchaser Annual Report on Form 20-F for the fiscal year ended December 31, 2023, filed with the SEC on April 30, 2024, or disclosed by Purchaser in a subsequent Purchaser SEC Report or made available to the Company Disclosure Schedule, before the date of this Agreement. Each Purchaser Material Contract is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company agreement of Purchaser or the its applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effectSubsidiary, except (i) as may where the failure to be limited by bankruptcy, insolvency, moratorium valid and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as binding would not, individually or in the aggregate, reasonably be expected to have a Company Purchaser Material Adverse Effect. Neither the Company nor any Except as would not be material to Purchaser, (i) neither Purchaser or such Subsidiary of the Company has, andnor, to the Knowledge of the CompanyPurchaser, none of the any other parties thereto haveparty, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a is in breach of or default under, the provisions of under any such Purchaser Material Contract, except in each case for those violations, acts (or failures to actii) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1the date of this Agreement, 2021, to the Knowledge there are no material disputes concerning any such Purchaser Material Contract and (iii) as of the Companydate of this Agreement, neither the Company nor no party under any Subsidiary of the Company Purchaser Material Contract has received given written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty its intent to any Material Contract has (A) canceled terminate or otherwise terminated, or threatened in writing seek a material amendment to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Purchaser Material Adverse EffectContract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fusion Fuel Green PLC), Stock Purchase Agreement (Ilustrato Pictures International Inc.)
Material Contracts. (a) Except (i) Except as filed as exhibits to set forth in Schedule 5.1(j)(i) of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Letter, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractby:
(iA) any lease of real or personal property providing for annual rentals of $15,000,000 or more;
(B) any agreement or agreements involving more than $5,000,000 individually or $10,000,000 in the aggregate to acquire (I) a License, or an interest in an entity holding a License, that is upon acquisition by the Company would become a “Communications License or (II) any interest in an entity that holds a License that upon acquisition of such entity by the Company would become a Foreign License;
(C) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material contract” to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns any interest valued at more than $10,000,000 without regard to percentage voting or economic interest (unless pursuant to such agreement or arrangement the Company and its Subsidiaries do not have a future funding obligation reasonably likely to require funding of more than $15,000,000 in the aggregate);
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000,000;
(E) any Contract required to be filed as such term is defined in an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of under the Exchange Securities Act);
(iiF) any non-competition Contract or other Contract that is with (I) purports to limit in any material respect either the ten type of business in which the Company or its Subsidiaries (10or, after the Effective Time, Parent or its Affiliates) largest customers may engage or the manner or locations in which any of them may so engage in any business or (II) could require the disposition of any material assets or line of business of the Company and or its Subsidiaries during or, after the fiscal year ended January 31Effective Time, 2024 Parent or its Affiliates;
(as determined based on revenue received from such customers during such time periodG) any Contract (excluding other than (I) a Contract with respect to compensation or similar arrangements not involving a director of the Company or one of the Section 16 Officers and (II) any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices Contract entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by between the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company and any director or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability officer of the Company or any Subsidiary Person beneficially owning, as of the Company to compete date hereof, five percent or engage in more of the outstanding Shares;
(H) any line of business or to compete with any Person in any geographic areaContract that contains a put, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer call or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess could be required to purchase or sell, as applicable, any equity interests of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) any Person or assets that is have a settlement, conciliation fair market value or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration purchase price of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);25,000,000; and
(xvI) any stockholders’ agreementother Contract or group of Contracts with a single counterparty that, proxy, voting trust agreement if terminated or registration rights agreement or similar agreements, arrangements or commitments relating subject to a default by any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notwould, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. Neither Effect (the Company nor any Subsidiary Contracts described in clauses (A) – (I), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) A true and complete copy of each Material Contract has previously been delivered or made available to Parent (subject to applicable confidentiality restrictions) and each such Contract is a valid and binding agreement of the Company hasor one of its Subsidiaries, and, to as the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act undercase may be, and no event or condition existsis in full force and effect, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of its Subsidiaries nor, to the knowledge of the Company has received written notice of any of the foregoing. To the Knowledge officers of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled other party thereto is in material default or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with breach under the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount terms of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 2 contracts
Sources: Merger Agreement (SBC Communications Inc), Merger Agreement (At&t Corp)
Material Contracts. (a) Except (i) as for this Agreement and the Contracts filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection Reports filed with the transactions contemplated hereby and (iii) for Company Employee Plans, as of SEC prior to the date hereofof this Agreement, neither the Company nor any Subsidiary of the no Group Company is a party to to, and no Group Company’s properties or is assets are bound by by, any Contract:of the types of Contracts listed in clauses (i) through (xi) of this Section 3.15(a) (such types of Contracts being the “Material Contracts”):
(i) each Contract that is a “material contract” (as such term is defined in would be required to be filed by the Company pursuant to Item 601(b)(10) of Regulation S-K 4 of the Exchange Act)Instructions to Exhibits to the Company’s most recently filed annual report on Form 20-F;
(ii) that is with the ten (10) largest customers each Contract relating to any Indebtedness or Lien in excess of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)RMB30 million;
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into each Contract in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition respect of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant joint venture, strategic cooperation or other provision limiting in any material respect the ability of the Company collaboration arrangement, joint sales or any Subsidiary of the Company to compete marketing agreement, or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiariespartnership arrangement, in each case, that is material to the business of the Group Companies taken as a whole, or (B) other agreement involving a sharing of profits, losses, costs or liabilities by any Group Company and that is material to the business of the Group Companies taken as a whole;
(iv) each Contract that involves the acquisition or disposition, directly or indirectly (by merger, license or otherwise), of any securities of any person (other than a Company Share Award) or any assets that have a fair market value or purchase price of more than RMB30 million;
(v) each Contract with a Governmental Authority in excess of RMB30 million;
(vi) each Contract with a Major Customer or Major Supplier in excess of RMB30 million;
(vii) each Contract with a sales representative or distributor with expected aggregate annual payments by or to the Company or any of its SubsidiariesSubsidiaries in excess of RMB30 million;
(viii) each Contract (including any distribution agreements) that limits, or purports to limit, the ability of any Group Company to compete in any line of business in any geographic area or during any period of time in a manner that is material to the Group Companies, taken as a whole, or any Contract that grants any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, exclusive rights or restrictions resulting therefrom are material to the Group Companies, taken as a whole;
(viiiix) each Contract in excess of RMB1,000,000 between any Group Company, on the one hand, and any directors or officers of any Group Company or their immediate family members or shareholders (other than the Chairman Parties) of any Group Company holding more than 5% of the voting securities of any Group Company, on the other hand, under which there are material rights or obligations outstanding;
(x) each Contract providing for any earn-out or similar payment payable by any Group Company to any person (other than to another Group Company) in excess of RMB4 million;
(xi) each Contract involving payments by the Company or any of its Subsidiaries in excess of RMB30 million in the aggregate under each Contract;
(xii) each Contract relating to any capital expenditure or evidencing indebtedness for borrowed money, debt securities, warrants any disbursement Contract with a contract value exceeding RMB30 million;
(xiii) each share or stock redemption or purchase or other rights Contract affecting or relating to acquire any debt securities, the share capital of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries Subsidiaries, including each Contract with any shareholder of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholewhich includes anti-dilution rights, voting arrangements or operating covenants;
(xixiv) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from each Contract under which the Company or any of its Subsidiaries recognized revenues in excess has granted any Person any registration rights, or any right of $1,000,000 during first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the fiscal year ended January 31, 2024;Company; and
(xivxv) each Contract that is contains a settlementput, conciliation call or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) right pursuant to which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would could be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether purchase or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Companysell, as the case may beapplicable, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of any equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions interests of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectPerson.
Appears in 2 contracts
Sources: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement, the Confidentiality Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)SEC) to the Company;
(ii) that is with which constitutes a contract or commitment relating to indebtedness for borrowed money or the ten deferred purchase price of property (10in either case, whether incurred, assumed, guaranteed or secured by any asset) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(viiii) relating which purports to the disposition limit or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting restrict in any material respect (A) the ability of the Company or any Subsidiary of its Subsidiaries to solicit customers or (B) the Company to compete or engage manner in any which, the line of business in which or to compete with the localities in which, all or any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability portion of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation business of the Company and its Subsidiaries, in each caseincluding, that is material to following consummation of the Company transactions contemplated by this Agreement, Parent and its Subsidiaries, taken as a wholecompetes or would compete;
(viiiiv) relating to which would prohibit or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, materially delay the consummation of the Company Offer, the Merger or any Subsidiary of the Company, other transactions contemplated hereby or any guarantee by otherwise materially impair the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary ability of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and perform its Subsidiaries taken as a wholeobligations hereunder;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (yv) which would require the Company or any of its Subsidiaries to pay consideration purchase or procure goods and/or services of more than $1,000,000 after 10,000,000 over the date remaining term of this Agreement such contract (“Supplier Long-Term Agreements”) or that is an agreement for the sale of goods to the Company’s top ten customers based on revenue for the twelve-month period ending on the Balance Sheet Date (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions“Customer Long-Term Agreements”);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Precision Castparts Corp), Merger Agreement (Titanium Metals Corp)
Material Contracts. (a) Except Subsections (i) as filed as exhibits to through (x) of Section 3.16(a) of the Company SEC DocumentsDisclosure Schedule list the following types of Contracts, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor arrangements or understandings to which any Subsidiary of the Group Company is a party to or is bound by other than any Contract:
(i) such Contract that is a “material contract” Company Employee Plan or Company Employee Agreement (such Contracts as such term is defined are required to be set forth in Item 601(b)(10Section 3.16(a) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during Disclosure Schedule being the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business“Material Contracts”), and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability none of the Company or any of its Subsidiaries is a party to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (Dbound by any Material Contracts not listed in Section 3.16(a) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its SubsidiariesDisclosure Schedule:
(i) each Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) each Contract that is expected, as of the date hereof, by the Company to involve consideration of more than US$500,000, in each casethe aggregate, that is material over the remaining term of such Contract;
(iii) all Contracts relating to any credit, loan or facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by any asset of any Group Company) in excess of US$500,000, other than any such Contracts solely between any Group Companies;
(iv) all joint venture contracts, strategic cooperation or partnership arrangements, or other agreements involving a sharing of profits, losses, costs or liabilities by any Group Company;
(v) all Contracts relating to the purchase or sale of any shares or securities of, or other equity interests in, any Group Company and its Subsidiariesother than Company Equity Awards;
(vi) all Contracts that limit, taken as a wholeor purport to limit, in any material respect, the ability of any Group Company to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(vii) all Contracts involving any directors, executive officers or shareholders of the Company holding more than 5% of the share capital of the Company, required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) relating all Contracts providing for any change of control payment or similar payments to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, Third Party in excess of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);US$500,000; and
(ix) any hedgingall other Contracts, swap, derivative, whether or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers not made in the ordinary course of business, and/or (C) that is otherwise which are material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the any Group Company or any Subsidiary the conduct of its business, or the Company (A) on an exclusive basisabsence of which would, (B) on a non-exclusive basisindividually or in the aggregate, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is have a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesMaterial Adverse Effect.
(b) Each Except as would not have a Company Material Adverse Effect, (i) each Material Contract of the type described above in Section 4.15(a)is a legal, whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on agreement, subject to the Bankruptcy and Equity Exception, and no Group Company is in material breach or violation of, or default under, any Material Contract, (ii) as of the applicable Subsidiary date hereof, no Group Company has received any notice of cancellation of any Material Contract from the other party; (iii) to the Knowledge of the Company, as of the case may bedate hereof, no other party is in material breach or violation of, or default under, any Material Contract; and (iv) as of the date hereof, no Group Company has received any written claim of material default under any such Material Contract and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles no fact or event exists that could give rise to any claim of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or material default under, the provisions of under any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the . The Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship filed with the Company SEC or furnished or made available to Parent true and complete copies of all Material Contracts, including any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectamendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Material Contracts. (a) Except (i) as filed as exhibits to Section 4.7 of the Company SEC Documents, (ii) for this Agreement and Disclosure Schedule sets forth a list of all of the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Material Contracts as of the date hereof and, prior to the date hereof, neither the Company nor any Subsidiary has made available to Parent true copies of each Material Contract and summaries of all oral Company Contracts. For purposes of this Agreement, the Company is a party term “Material Contracts” shall mean with respect to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside Subsidiaries: (i) all Contracts required to be disclosed pursuant to Item 601(b)(10) of Regulation S K of the ordinary course SEC; and (ii) to the extent not included in the foregoing: (A) all Contracts for the future purchase or sale (in each case whether by merger, acquisition, purchase of business pursuant to an equity interest or otherwise) or lease of materials, supplies, merchandise, equipment or other personal property or assets which will involve consideration in excess of $500,000 in the aggregate or for the grant of any preferential right for any such future purchase, sale or lease; (B) all Contracts for the furnishing or receipt of services, the performance of which will involve consideration in excess of $500,000 in the aggregate; (C) all Contracts for the license of any Intellectual Property of the Company or its Subsidiaries have material continuing obligations;
to a third party entered into by the Company or its Subsidiaries; (viiD) containing (A) a covenant all mortgages, pledges, conditional sales contracts, security agreements, factoring agreements or other provision limiting similar agreements with respect to any assets of the Company which involve consideration in excess of $500,000 in the aggregate; (E) all non competition or similar Contracts which restrict in any material respect the ability geographic or operational scope of the Company or any Subsidiary business of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to , or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, the ability of the Company or any Subsidiary and its Subsidiaries, taken as a whole, to enter into new lines of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person business; (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ixF) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent all Contracts relating to borrowed money or other rights in indebtedness; (G) all material distribution, joint venture, partnership, marketing, development or to use Intellectual Propertyfranchise Contracts; (H) granted all Contracts by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues its Subsidiaries guarantee, endorse or otherwise become or are contingently liable for the fiscal year ended January 31debt, 2024 obligation or other liability of any other Person; (I) all Contracts which contain restrictions with respect to payment of dividends or any other distribution in excess respect of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or Company’s capital stock; (CJ) that is otherwise all Contracts which are material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) and which would require restrict the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement from disclosing any information concerning or (z) that subjects the Company or obtained from any of its Subsidiaries to any material ongoing requirements or restrictions other Person (other than ordinary course confidentiality requirements Contracts entered into in the Ordinary Course of Business or restrictions);
(xv) currently enforceable Contracts, to the extent any stockholders’ agreementdisclosure thereof is prohibited thereby, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities currently pending potential sale of all or a substantial portion of the Company whether such sale is pursuant to a merger or any of its Subsidiariesotherwise); or
(xviK) is with an affiliate or other Person that would be required all Contracts referred to in Section 4.8(a)(iii); (L) all Contracts to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) performed relating to capital expenditures of the Company Disclosure Scheduleand/or its Subsidiaries with a value in excess of $500,000 individually in any fiscal year; and (M) all material leases, is referred to herein as a “Material Contract.” Except for Material subleases, licenses and other Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, relating to the Knowledge leased real properties of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than(collectively, in each case, as would not reasonably be expected to have a Material Adverse Effectthe “Leases”).
Appears in 2 contracts
Sources: Merger Agreement (Silicon Storage Technology Inc), Merger Agreement (Microchip Technology Inc)
Material Contracts. (a) Except The Disclosure Letter sets forth a list of all (i) as filed as exhibits to the Company SEC DocumentsContracts for borrowed money or guarantees thereof, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and Contracts to acquire or dispose of any businesses or any material assets, (iii) for Company Employee PlansContracts involving any swap or option transaction relating to commodities, as of the date hereofinterest rates, neither the Company nor any Subsidiary of the Company is a party to foreign exchange, or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders currency or statements of work or invoices entered into in the ordinary course of business, and other similar transactions customarily known as a derivative ("Derivatives"); (iv) Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to containing an agreement by the Company or any Subsidiary restricting its Subsidiaries);
ability to engage in any line of business or other activity; (iiiv) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices Contracts entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company, any of its Subsidiaries or their respective predecessors since December 1, 1991 involving the purchase, sale or other acquisition or disposition by such parties of one or more business units, divisions or entities (including former Subsidiaries) with respect to which the Company's or any of its Subsidiary's surviving liability (including indemnities);
, or other obligations (iv) that is including deferred payment and earn-out obligations), could reasonably be expected to exceed $1,000,000, or which require funds to be held in trust or escrow for the benefit of a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
third party; (vi) relating to Contracts involving the disposition investment, including by way of capital contribution, loan or acquisition of any businessadvance, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company more than $3,000,000 in any other person, firm or its Subsidiaries have material continuing obligations;
entity; (vii) containing (A) a covenant Contracts to purchase powder metals or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right atmospheres that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise are material to the Company and its Subsidiaries taken as a whole;
and (xiviii) that is a license (other Contracts which involve the payment or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess receipt of $1,000,000, and/or (C) that is otherwise material 5,000,000 or more per year. All Contracts to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation party or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) by which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreementtheir respective assets is bound are valid and binding, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of in full force and effect and enforceable against the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge knowledge of the Company, each the other party theretoparties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency or other similar laws relating to creditors' rights and (B) general principles of equity, except where the failure to be so valid and binding, in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as effect or enforceable would not, not individually or in the aggregate, reasonably be expected to aggregate have a Company Material Adverse Effect. Neither the Company nor There is not under any Subsidiary of the Company hassuch Contract, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision ofexisting default, or committed or failed to perform any act under, and no event or condition existsevent, which (with after notice or without notice, lapse of time time, or both) , would constitute a breach default, by the Company or any of its Subsidiaries, or default underto the Company's knowledge, the provisions of any Material Contractother party, except in each case for those violations, acts (other than any such defaults or failures to act) and defaults event which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
Material Contracts. Section 2.10 of the Company Disclosure Schedule is a correct and complete list of the following currently effective Company Contracts (each, a “Company Material Contract” and, collectively, “Company Material Contracts”):
(a) Except (i) as filed as exhibits to each Company Contract that constitutes the Company SEC Documents, (ii) for this Agreement Leases and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)Ancillary Lease Documents;
(iib) that is with each Company Contract for the ten (10) largest customers purchase of the Company and its Subsidiaries during the fiscal year ended January 31materials, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreementssupplies, data processing agreementsgoods, purchase orders services, equipment or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure assets for which future annual payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business of, or pursuant to which in the last year the Company or any of its Subsidiaries paid, in the aggregate, $500,000 or more;
(c) each Company Contract for the sale of materials, supplies, goods, services, equipment or other assets for annual payments to the Company of, or pursuant to which in the last year the Company or any of its Subsidiaries received, in the aggregate, $500,000 or more;
(d) each Company Contract that relates to any partnership, joint venture, strategic alliance or other similar Contract;
(e) each Company Contract relating to Indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), except for Contracts relating to Indebtedness in an amount not exceeding $500,000 in the aggregate;
(f) each Company Contract that provides for any employment, severance, retention, transaction bonus, change in control, consulting or other similar agreement between: (i) the Company or any of its Subsidiaries, on the one hand, and (ii) any employee, director or other individual service provider of the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or Subsidiaries, on the other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic areahand, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) such Contract that is terminable “most favored nation”, “exclusivityat will” or similar provisions, (C) a right without any obligation in excess of first refusal or right of first offer or similar right that limits $100,000 on the ability part of the Company or any of its Subsidiaries to sellmake any severance, transferbonus, pledge termination, change in control or otherwise dispose similar payment or to provide any other benefit with a value in excess of assets, rights or properties or $100,000 (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material than benefits required to the Company and its Subsidiaries, taken as a wholebe provided by applicable Law);
(viiig) relating to each Company Contract which by its terms limits in any respect (i) the localities in which all or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, significant portion of the business and operations of the Company or any Subsidiary Affiliate of the CompanyCompany (which will include Parent after the Effective Time), or any guarantee by (ii) the Company or right of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary Affiliate of the Company (Awhich will include Parent after the Effective Time) on an exclusive basisto compete with any Person;
(h) each Company Contract in respect of any Company Intellectual Property that provides for annual payments of, (B) on a non-exclusive basis, if or pursuant to which in the Company or any Subsidiary made payments during the fiscal last year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues paid or received, in excess of the aggregate, $1,000,000 during the fiscal year ended January 31, 2024500,000 or more;
(xivi) that is a settlementeach Company Contract containing any royalty, conciliation dividend or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require arrangement based on the revenues or profits of the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)Subsidiaries;
(xvj) each Company Contract with any stockholders’ agreement, proxy, voting trust agreement Governmental Authority;
(k) each Company Contract with (a) an executive officer or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities director of the Company or any of its Subsidiaries or any of such executive officer’s or director’s immediate family members, (b) an owner of more than five percent (5%) of the voting power of the outstanding capital stock of the Company, or (c) to the Knowledge of the Company, any “related person” (within the meaning of Item 404 of Regulation S-K under the Securities Act) of any such officer, director or owner (other than the Company or any of its Subsidiaries);
(l) each Company Contract that gives rise to any material payment or benefit as a result of the performance of this Agreement or any of the other Contemplated Transactions;
(m) each Company Contract relating to dispositionthe acquisition or disposition of any material interest in, voting or dividends with respect to any equity securities material amount of, property or assets of the Company or any of its SubsidiariesSubsidiaries 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; or
(xvin) is with an affiliate any other each Company Contract (or other Person that would be required group of related agreements) the performance of which requires aggregate payments to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among or from the Company or any of its Subsidiaries in excess of $500,000. The Company has delivered or made available to Parent accurate and its wholly-owned Subsidiaries.
complete (bexcept for applicable redactions thereto) Each Contract copies of the type described above all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in Section 4.15(a), whether or not written form. Except as set forth in on Section 4.15(a) 2.10 of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on neither the Company or the applicable nor any Subsidiary of the CompanyParent has, as the case may be, andnor, to the Knowledge of the Company, each any other party theretoto a Company Material Contract, and (B) has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Company Material Contract in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) such manner as would notpermit any other party to cancel or terminate any such Company Material Contract, individually which has had or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect. Neither As to the Company nor any Subsidiary and its Subsidiaries, as of the date of this Agreement, each Company hasMaterial Contract is valid, andbinding, enforceable and in full force and effect, subject to: (i) Laws of general application relating to bankruptcy, insolvency and the Knowledge relief of debtors; and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Company, none Contemplated Transactions will not (either alone or upon the occurrence of additional acts or events) result in any material payment or payments becoming due from the other parties thereto have, violated Company or the Surviving Corporation to any provision of, Person under any Company Material Contract or committed give any Person the right to terminate or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, materially alter the provisions of any Company Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Emmaus Life Sciences, Inc.), Merger Agreement (MYnd Analytics, Inc.)
Material Contracts. (a) Except (i) as filed as exhibits to Section 3.17 of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Seller Disclosure Schedule sets forth as of the date hereof, neither the Company nor any Subsidiary of this Agreement a true and complete list of the Company following Contracts (other than purchase orders and invoices, Benefit Plans and Compensation Agreements) to which any of the Transferred Entities is a party to or is bound by any Contract:(the “Material Contracts”):
(i) that is a “material contract” (as such Contracts involving payments by the Transferred Entities of more than $250,000 per year or $2,000,000 over the term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)Contract, or having a term of more than four (4) years and not terminable within 180 days;
(ii) that is with Contracts requiring the ten (10) largest customers Transferred Entities to provide more than $250,000 of services per year or $2,000,000 of services over the term of the Company Contract, or that are anticipated to generate, individually, revenue for any Transferred Entity of more than $1,000,000 in 2022 or 2023;
(iii) any Contract containing any future capital expenditure obligations of the Transferred Entities (or otherwise relating to the Business) in excess of $250,000;
(iv) Contracts evidencing Indebtedness for borrowed money of any Transferred Entity with a principal amount greater than $1,000,000;
(v) Contracts requiring any Transferred Entity to pay, perform, discharge or otherwise guarantee any Indebtedness of any other Person (other than a Transferred Entity) with a principal amount greater than $1,000,000;
(vi) any joint venture, partnership or other similar agreement involving co-investment between any Transferred Entity and its Subsidiaries during a third party;
(vii) Contracts for the fiscal year ended January 31sale, 2024 (as determined based on revenue received from such customers during such time period) (excluding transfer or other disposition of any non-disclosure agreementsassets of any Transferred Entity involving payments of more than $1,000,000, data processing agreements, purchase orders or statements other than sales of work or invoices entered into inventory in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)business consistent with past practice;
(iiiviii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) Contract relating to the acquisition or disposition or acquisition of any businessbusiness (whether by merger, equitysale of stock, sale of assets or otherwise) under which the Transferred Entities have a continuing obligation with respect to an “earn out,” contingent purchase price, or all similar contingent payment obligation that is reasonably expected to be $250,000 or substantially all of the assets of any Person for aggregate consideration greater in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;amount; and
(viiix) any Contract containing (A) a covenant covenants that would restrict or other provision limiting limit in any material respect the ability of the Company or any Subsidiary of Transferred Entities after the Company Closing to compete or engage in any line of business the Business or compete with respect to compete the Business with any Person or in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Sellers have made available to Purchaser true, correct and complete copies of each Material Contract and all amendments related thereto. Each Material Contract of the type described above in Section 4.15(a)is a legal, whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or obligation of the applicable Subsidiary of the Company, as the case may beTransferred Entities, and, to the Knowledge knowledge of the CompanySellers, of each other party counterparty thereto, and (B) is in full force and effect, and no Transferred Entity, or, to the knowledge of Sellers, other party thereto is in breach of, or in default under, any such Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by any of the Transferred Entities, or, to the knowledge of Sellers, any other party thereto, except (i) as may for such failures to be limited by bankruptcyvalid, insolvencybinding or in full force and effect and such breaches, moratorium defaults or events that have not had and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Ambipar Emergency Response), Purchase and Sale Agreement (Ambipar Emergency Response)
Material Contracts. (a) Except (i) as All Contracts, including amendments thereto, required to be filed as exhibits an exhibit to any report of Central filed pursuant to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as Exchange Act of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined type described in Item 601(b)(10) of Regulation S-K under the Exchange Act have been so filed as of the Exchange Actdate 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 clause (a) above which were filed in an unredacted form, Section 3.10(b) of the Central Disclosure Letter sets forth a correct and complete list, and Central has made available to East correct and complete copies (including all material amendments, modifications, extensions or renewals with respect thereto), of each of the following Contracts to which Central or any of the Central Subsidiaries is a party or 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 Central or any of the Central Subsidiaries (including East and the East Subsidiaries following the Closing) to (A) compete in any line of business or geographic area or with any Person during any period of time after the Effective Time or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties;
(ii) each Contract that creates, evidences, provides commitments in respect of, secures or guarantees (A) Indebtedness for borrowed money in any amount in excess of $50,000,000 or (B) other Indebtedness of Central or any of the Central Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000,000, other than agreements solely between or among Central and the Central Subsidiaries;
(iii) each Contract for lease of personal property or real property (excluding Oil and Gas Leases) involving annual payments in excess of $25,000,000 or aggregate payments in excess of $50,000,000 that are not terminable without penalty or other liability to Central or any of the Central Subsidiaries (other than any ongoing obligation pursuant to such Contract that is with not caused by any such termination) within sixty (60) days, other than Contracts related to drilling rigs;
(iv) each Contract involving the ten pending acquisition, swap, exchange, sale or other disposition of (10or option to purchase, acquire, swap, exchange, sell or dispose of) largest customers any Oil and Gas Properties of Central and the Company and its Central Subsidiaries during for which the fiscal year ended January 31aggregate consideration (or the fair market value of such consideration, 2024 (as determined based on revenue received from such customers during such time period) (excluding any if non-disclosure agreementscash) payable to or from Central or any Central Subsidiary exceeds $50,000,000, data processing agreements, other than Contracts involving the acquisition or sale of (or option to purchase orders or statements of work or invoices entered into sell) Hydrocarbons in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiiv) each Contract for any Derivative Product;
(vi) each material partnership, stockholder, joint venture, limited liability company agreement or other joint ownership agreement, other than with respect to arrangements exclusively among Central and/or its wholly-owned Subsidiaries and other than any customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of Central or any of the Central Subsidiaries;
(vii) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract requiring Central or any of the Central Subsidiaries to make annual expenditures in excess of $25,000,000 or aggregate payments in excess of $60,000,000 (in each case, net to the interest of Central and the Central Subsidiaries) following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(viii) 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 Central or any of the Central Subsidiaries or any of their respective Affiliates is subject, and, in each case, is material to the business of Central and the Central 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 Central or any of the Central 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 Central or any of the Central Subsidiaries;
(ix) 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 Central 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 $15,000,000 or (2) earn out payments, contingent payments or other similar obligations to a third party, including indemnity payments, in excess of $30,000,000 in the aggregate after the date hereof;
(x) any Contract (other than any other Contract otherwise covered by this Section 3.10(b)) that is with the ten creates future payment obligations (10including settlement agreements or Contracts that require any capital contributions to, or investments in, any Person) largest vendors of Central or any of the Company and its Central Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in outside the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future in each case, involving annual payments are required in excess of $5,000,000;
(vi) relating to the disposition 25,000,000 or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration payments in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
50,000,000 (vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between customary joint operating agreements or unit agreements affecting the Company Oil and Gas Properties of Central or any of its wholly-owned Subsidiaries the Central Subsidiaries), or between creates or among would create an Encumbrance on any wholly-owned Subsidiaries material asset or property of Central or any of the Company);
Central Subsidiaries (ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholePermitted Encumbrances);
(xi) any Contract that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) provides for midstream services to, or the sale by, Central or any of the Central Subsidiaries of Hydrocarbons (1) in excess of 15,000 gross barrels of oil equivalent of Hydrocarbons per day (calculated on an exclusive a per day yearly average basis, ) or (2) for a term greater than or equal to ten (10) years and (B) on has a non-exclusive basis, if pursuant remaining term of greater than ninety (90) days and does not allow Central or the Central Subsidiaries to which terminate it without penalty to Central or the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or Central Subsidiaries within ninety (C90) that is otherwise material to the Company and its Subsidiaries taken as a wholedays;
(xii) any Contract that is provides for a Company Real Property Lease with remaining obligations “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 Central or any Central 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 $1,000,00010,000,000 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) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024Labor Agreement;
(xiv) that is a settlement, conciliation or similar any Contract (xother than Oil and Gas Leases) pursuant to which Central or any of the Central Subsidiaries has paid amounts associated with any Governmental Authority entered into since February 1Production Burden in excess of $25,000,000 during the immediately preceding fiscal year or with respect to which Central reasonably expects that it and the Central Subsidiaries will make payments associated with any Production Burden in any of the next three (3) succeeding fiscal years that could, 2021based on current projections, exceed $25,000,000 annually or $50,000,000 in the aggregate;
(yxv) any Contract which would require is between Central or any of the Company Central 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 Central’s capital stock (or any affiliates of any such Person) on the other hand involving aggregate annual payments in excess of $120,000, other than compensation arrangements with the directors on the Central Board in their capacity as such; or
(xvi) each Contract or Central 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 consideration of more than $1,000,000 after the date of this Agreement dividends or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends distributions with respect to their capital stock, pay any equity securities of Indebtedness for borrowed money, obligations or liabilities from time to time owed to the Company Surviving Corporation or any of its Subsidiaries; or
(xvi) is with an affiliate , make loans or other Person that would be required to be disclosed under Item 404 advances or transfer any of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesproperties or assets.
(c) The Contracts described in the foregoing clauses (a) and (b) Each Contract of the type described above in Section 4.15(a), whether together with all exhibits and schedules to such Contracts, as amended through the date hereof or not set forth as hereafter amended in accordance with Section 4.15(a) of the Company Disclosure Schedule4.2 hereof, is are referred to herein as a “Central Material ContractContracts.” Except for ”
(d) Each Central Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) Contract is valid and binding on the Company Central or the applicable Central Subsidiary of the Companyparty thereto, as the case may be, and, to the Knowledge of the CompanyCentral, each other party thereto, and (B) is in full force and effecteffect in accordance with its terms, except for (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles terminations or expirations at the end of equity and the stated term or (ii) such failures to be valid and binding or to be in full force and effect as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Central Material Adverse Effect. , in each case subject to Enforceability Exceptions.
(e) Neither the Company Central nor any Subsidiary of the Company hasCentral Subsidiaries is in breach of, or default under the terms of, and, to the Knowledge of the CompanyCentral, none of the no other parties thereto have, violated party to any provision Central Material Contract is in breach of, or committed default under the terms of, any Central Material Contract, nor is any event of default (or failed similar term) continuing under any Central Material Contract, and, to perform the Knowledge of Central, there does not exist any act underevent, and no condition or omission that would constitute such a default, breach or event of default (or condition exists, which similar term) (with or without notice, whether by lapse of time or notice or both) would constitute a breach of or default under, the provisions of under any Central Material Contract, except in each case for those violationswhere such breach, acts default or event of default (or failures similar term) would reasonably be expected to act) and defaults whichhave, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Central Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (WPX Energy, Inc.), Merger Agreement (Devon Energy Corp/De)
Material Contracts. (a) Except for this Agreement, the Company Employee Plans (i) including all Contracts thereunder), or as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansSEC, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractby:
(i) that is (A) any Contract providing for or governing the formation, creation, operation, management or control of a “joint venture, strategic alliance, partnership or sharing of profits or revenue, in each case material contract” to the Company and its Subsidiaries, taken as a whole; or (as such term is defined B) except Contracts or purchase orders for expenditures to the extent accounted for or reflected in Item 601(b)(10the Company’s capital expenditure budget set forth in Section 4.13(a)(i) of Regulation Sthe Company Disclosure Letter (the “Capex Budget”), any Contract or non-K trade purchase order from service providers or suppliers obligating the Company or any of its Subsidiaries to make any capital investment or capital expenditure in excess of $1,000,000 over the Exchange Act)remaining life of such Contract or such purchase order;
(ii) any Contract or non-trade purchase orders from service providers or suppliers that requires payments by the Company or and of its Subsidiaries, or any Contract that requires payments to the Company or and of its Subsidiaries, in each case, in excess of $2,500,000 during the fiscal year ended August 31, 2024 (in each case, other than (A) Contracts or purchase orders for expenditures to the extent accounted for or reflected in the Capex Budget, or (B) Contracts or purchase orders for the acquisition or disposition of raw materials, natural gas, other inventory, supplies, equipment, services or products in the ordinary course of business);
(iii) any Contract pursuant to which (A) it grants to any other Person a license, covenant not to sue or similar right under any material Company IP, (B) any other Person grants to it a license, covenant not to sue or similar right under any material Intellectual Property used in the its business, or (C) it agrees to limit its use or enforcement of material Company IP in any material respect (including pursuant to any co-existence or similar agreement), but excluding, in each case of (A) through (C): any (1) non-exclusive licenses granted to it with respect to “off the shelf” Software or Software that is readily commercially available pursuant to a standard “shrink wrap” or other similar standardized license agreement that has a purchase price or annual license fee of less than $1,000,000; (2) non-exclusive licenses granted in the ordinary course of business to any customer for such customer’s end-use of Company Products, or non-exclusive licenses to or assignments from any employee, contractor, consultant, vendor or service provider, solely in connection with the ten provision or receipt of services by it or such parties; (103) largest customers open source Software licenses; and (4) non-exclusive licenses incidental to its sale or purchase of any product or service;
(iv) any Contract governing the development or ownership of any Intellectual Property, Software or Company Product developed by or jointly with any other Person at the request or direction of such other Person which Intellectual Property, Software or Company Product is material to the business of the Company and its Subsidiaries during the fiscal year ended January 31Subsidiaries, 2024 (as determined based on revenue received from such customers during such time period) (but excluding any non-disclosure agreementsemployment, data processing agreementsconsulting, purchase orders services or statements of work or invoices invention assignment agreements entered into in the ordinary course of businessbusiness with employees, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid contractors or payable consultants of the Company or its Subsidiaries, in each case, assigning all rights therein to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
any Contract entered into at any time since January 1, 2022: (viA) relating to the disposition or acquisition by it of any business, equity, product line or all or substantially all of the other material assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (excluding, in any case, the acquisition or disposition of raw materials, natural gas, other inventory, supplies, equipment or products in the ordinary course of business or any utility Contract), including any put, call or similar right pursuant to which it could be required to purchase or sell any such business, product line or other material assets; or (B) pursuant to which it will acquire any interest, or will make an investment, (other than short term investments, including money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the Company Balance Sheet or the notes thereto, incurred in the ordinary course of business) in any other Person (other than the Company and its Subsidiaries have Subsidiaries);
(vi) any Contract relating to the disposition or acquisition by it of any business, product line or other material assets of it or another Entity (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into on or after January 1, 2020 with continuing obligationsmaterial indemnification obligations or (B) with any material remaining “earn out” or other contingent payment or consideration of it that has not been substantially satisfied prior to the date of this Agreement;
(vii) containing (A) a covenant or other provision limiting any Contract that by its terms limits in any material respect the ability of the Company or any Subsidiary and its Subsidiaries and, following the Closing, Parent and its Subsidiaries in their respective capacities as Affiliates of the Company or its Subsidiaries: (A) to compete or engage in any line of business or to compete with with, or provide any product or service to, any other Person or in any geographic area, other than any customary employee non-solicitation ; or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” to acquire any product or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company other asset or any of its Subsidiaries to sellservice from any Person, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” sell any product or other contingentasset to any other Person, deferred or fixed payment obligation of the Company transact business or deal in any other manner with any other Person;
(viii) any Contract that by its terms: (A) grants exclusive rights to market, sell or deliver any product and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
; (viiiB) relating contains any “most favored nation” or similar provision in favor of the counterparty for any product and that is material to the Company and its Subsidiaries, taken as a whole; (C) contains a right of first refusal, first offer or evidencing indebtedness for borrowed money, debt securities, warrants first negotiation or other rights any similar right with respect to acquire any debt securities, an asset of the Company or any Subsidiary of the Company, or any guarantee by and its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole; (D) obligates it to purchase a specified minimum amount of goods or of its Subsidiaries of the obligations of any Person (services, in each case, excluding, in excess of $1,000,000 (other than Contracts for the avoidance acquisition or disposition of doubtraw materials, intercompany loans between natural gas, other inventory, supplies, equipment or products in the ordinary course of business); or (E) that is material to the Company and its Subsidiaries, taken as a whole and provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material portion of its wholly-owned Subsidiaries or between or among requirements from any wholly-owned Subsidiaries of the Companythird party (other than utility Contracts);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or Contract relating to use Intellectual Property) granted by the Company or any Subsidiary Indebtedness of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 and its Subsidiaries in excess of $1,000,000, 1,000,000 over the remaining life of such Contract or creating a Lien (other than non-exclusive licenses granted to customers in the ordinary course a Permitted Lien) on any of business, and/or (C) its assets or properties that is otherwise material to the Company and its Subsidiaries Subsidiaries, taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract such Contracts solely among the Company and its wholly-owned Subsidiaries.;
(bx) any settlement or similar Contract arising out of a Legal Proceeding or threatened Legal Proceeding: that (A) materially restricts or imposes any material obligation on it and was entered into on or after January 1, 2020; (B) materially disrupts its business as currently conducted; or (C) would require it to pay consideration valued at more than $1,000,000 following the date of this Agreement and was entered into on or after January 1, 2020;
(xi) any material Contract with any Governmental Entity;
(xii) any Contract between or among it or its Subsidiary, on the one hand, and any directors, executive officers (as such term is defined in the Exchange Act) or any beneficial owner of five percent (5%) or more of the outstanding shares of any class of capital stock of it, or any Affiliate of the foregoing, on the other hand;
(xiii) any Contract that is a Collective Bargaining Agreement; or
(xiv) any other Contract (other than any other Material Contract), the termination of which would constitute a Company Material Adverse Effect. Each Contract of the type described above in this Section 4.15(a)4.13(a) or filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, whether or not set forth in together with each lease listed on Section 4.15(a4.10(b) of the Company Disclosure ScheduleLetter, is referred to herein as a “Material Contract.” The Company has made available to Parent a true, correct and complete copy of each Material Contract existing as of the date hereof.
(b) Except for (i) as does not constitute a Company Material Contracts Adverse Effect or (ii) to the extent that have expired any Material Contract expires or terminated by their terminates after the date hereof in accordance with its terms, all of the each Material Contracts are (A) valid Contract is in full force and effect and is valid, binding on and enforceable in accordance with its terms against the Company or the applicable Subsidiary of the Companyits Subsidiary, as applicable, subject to the case may beEnforceability Exceptions and assuming the validity, binding nature and enforceability against the counterparty or counterparties thereto. Neither the Company nor any of its Subsidiaries has, and, to the Knowledge of the Company, each no other party theretoPerson has, violated or breached, or committed any default under, any Material Contract, and (B) neither the Company nor any of its Subsidiaries would, and, to the Knowledge of the Company, no other Person would, with or without notice or lapse of time, or both, be in full force and effectbreach or violation of, except (i) as may be limited by bankruptcyor default under, insolvencyany such Material Contract, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notwhere such violation, individually breach or in the aggregate, reasonably be expected to have default constitutes a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, andits Subsidiaries has received any written notice regarding any actual or, to the Knowledge of the Company, none of the other parties thereto have, violated any provision threatened breach or violation of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any such Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing intention to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Radius Recycling, Inc.), Agreement and Plan of Merger (Radius Recycling, Inc.)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) except for any Company Real Property Leases, Company Employee PlansBenefit Plans and insurance policies or contracts pursuant to which any Group Company ceded or assumed insurance or reinsurance, as of the date hereofOriginal Agreement Date, neither the Company nor any Subsidiary of the no Group Company is a party to or is bound by any Contractany:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)agreements with Governmental Entities;
(ii) agreements that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders limit or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary purport to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect limit the ability of the Company or any Subsidiary of the Group Company to compete or engage in any line of business or to compete with any other Person or in any geographic areaarea or during any period of time;
(iii) joint venture, partnership, strategic alliance and business acquisition or divestiture agreements;
(iv) agreements to which an Affiliate of any Group Company is a party (other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the agreements solely among one Group Company and its Subsidiariesone or more other Group Companies);
(v) agreements relating to issuances of securities of any Group Company;
(vi) agreements or indentures relating to Indebtedness or undrawn letters of credit;
(vii) leases or agreements under which any Group Company is the lessee of or holds or operates any tangible property, in each caseowned by any other Person, that is material to except for any lease or agreement under which the Company and its Subsidiaries, taken as a wholeaggregate annual rental payments do not exceed $500,000;
(viii) relating leases or agreements under which any Group Company is the lessor of or permits any third party to hold or evidencing indebtedness operate any tangible property, owned or controlled by the Company, except for borrowed money, debt securities, warrants any lease or other rights agreement under which the aggregate annual rental payments do not exceed $500,000;
(ix) contracts that relates to acquire any debt securities, material disposition or acquisition of the Company assets or properties by any Subsidiary of the Group Company, or any merger, amalgamation or business combination with respect to any Group Company;
(x) material agreements containing most favored nations or most favored customer provisions or non-competition or non-solicitation covenants (other than employee non-competition and non-solicitation covenants);
(xi) contracts that provide for the guarantee by the Company or of its Subsidiaries of the obligations any liability of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the other than a Group Company);
(ixxii) any hedgingother contracts that involves the expenditure, swap, derivative, payment or similar Contract;
(x) that receipt of more than $500,000 in the aggregate and is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted not terminable by the Company without penalty on notice of 90 days or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000less;
(xiii) that involves a any material joint venture, profit sharing, partnership capital maintenance or similar agreement from agreements pursuant to which the any Group Company has agreed to contribute capital or surplus to any other Group Company or to any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;third party under specified circumstances and/or maintain such Group Company or third party’s capital or surplus at specified levels; and
(xiv) contracts that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries grant binding authority to any material ongoing requirements or restrictions insurance agent of a Group Company (other than ordinary course confidentiality requirements or restrictionscollectively, with subsections (i) through (xiii);
(xv) any stockholders’ agreement, proxyand together with Company Real Property Leases, voting trust agreement or registration rights agreement or similar agreementsCompany Employee Benefit Plans, arrangements or commitments relating to any equity securities of Group Company IP Agreements, Company Reinsurance Agreements and Company Agent Contracts, the “Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesMaterial Contracts”).
(b) The Company has provided to Parent correct and complete copies of all Company Material Contracts, including any amendments thereto. Each Company Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Group Company, as the case may be, in full force and effect and enforceable in accordance with its terms against such Group Company and, to the Knowledge knowledge of the Company, each other party thereto, and thereto (B) in full force and effect, except (i) as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Applicable Law Laws affecting generally the enforcement of creditors’ rights generally and by subject to general principles of equity and equity). During the past two (ii2) as would notyears, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Group Company has received written notice of any event or condition that constitutes, or, after notice or lapse of the foregoingtime or both, will constitute, any default under or any cancellation of any Company Material Contract, except for defaults that have not been or reasonably would not be expected to be material to any Group Company party to such Company Material Contract. To the Knowledge knowledge of the Company, since February 1there are no events or conditions which constitute, 2021or, after notice or lapse of time or both, will constitute, a default on the part of any party under any Company Material Contract or result in the termination of, or cause or permit the acceleration or other modification of any right or obligation or the loss of any benefit thereunder, and no Group Company or, to the knowledge of the Company, any third party has violated any provision of, or failed to perform any obligation required under the provisions of any Company Material Contract, except for defaults, violations or failures that have not been or reasonably would not be expected to be material to any Group Company party to such Company Material Contract. No Group Company that is party to any Company Material Contract and, to the knowledge of the Company, no counterparty to under any Company Material Contract has (A) canceled is insolvent or the subject of a rehabilitation, liquidation, conservatorship, receivership, bankruptcy or similar proceeding. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereunder shall constitute a default under, give rise to cancellation rights under, or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with adversely affect any of the material rights of any Group Company or under any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation, Agreement and Plan of Amalgamation (Enstar Group LTD)
Material Contracts. (a) Except (iSection 3.11(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is Disclosure Schedule sets forth a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) complete and accurate list of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party that fall within the following categories and existing as of the ordinary course date hereof (collectively, the “Company Material Contracts”):
(i) any Contract for the purchase or sale of services, equipment or other assets (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by the Company and/or its Subsidiaries of $300,000 or more; or (2) gives rise to anticipated receipts of more than $300,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the Company and/or its Subsidiaries of any material penalty;
(ii) any material partnership, joint venture or other similar agreement or arrangement;
(iii) any Contract relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which the Company or its Subsidiaries have has material continuing obligationsongoing obligations entered into within the three years prior to the date hereof;
(viiiv) any Contract as obligor or guarantor relating to Indebtedness (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $300,000;
(v) any Contract containing (A) a covenant any area of mutual interest, joint bidding area, joint acquisition area, or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to non-compete or engage in any line similar type of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right provision that limits materially restricts the ability of the Company or any of its the Company’s Subsidiaries to (A) compete in any line of business or geographic area or with any Person during any period of time after the Closing or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties;
(vi) any Contract to sell, transferlease, pledge farmout, exchange or otherwise dispose of assets, rights all or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation any part of the Oil and Gas Properties of the Company and its Subsidiaries;
(vii) each Contract for the sale, in each casepurchase, that is material to exchange or other disposition of Hydrocarbons produced from the Oil and Gas Leases or ▇▇▇▇▇ of the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire each Contract that contains any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)drilling commitments;
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues each Contract for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities Derivative Transaction of the Company or any of its Subsidiaries; or;
(xvix) is with an affiliate any joint development agreement, exploration agreement, participation, farmout, farmin or other Person program agreement or similar Contract (or series of related Contracts) requiring the Company or any Subsidiary to make expenditures that would reasonably be required expected to be disclosed under Item 404 in excess of Regulation S-K promulgated under (x) $1,000,000 in any calendar year or (y) $2,000,000 during the Exchange Actterm thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract solely among that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of the Company and its wholly-owned Subsidiaries per day over a period of one month (calculated on a yearly average basis) and for a term greater than 10 years, except for any Contracts that are terminable without penalty within 90 days;
(xii) each Contract that contains any standstill, “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal or any similar requirement or right in favor of any third party, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements or unit agreements affecting the business or the Oil and Gas Properties of the Company or any of its Subsidiaries;
(xiii) each Contract or group of related Contracts reasonably expected to result in Transaction Expenses of more than $100,000; and
(xiv) any Contract that constitutes a seismic, data or geophysical license, agreement or permit.
(b) Each Company Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) is a valid and binding agreement of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all one of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party theretoits Subsidiaries, and (B) is in full force and effect, and none of the Company, any Subsidiary of the Company or, to the Company’s knowledge, any other party is in default or breach under the terms of any such Company Material Contract, except (i) as may for any such defaults or breaches which would not reasonably be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notexpected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Talos Energy Inc.), Merger Agreement (Talos Energy Inc.)
Material Contracts. (aExcept pursuant to an acquisition permitted by Section 4.1(d) Except (i) as filed as exhibits or to employment or compensation arrangements with directors and officers, the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of businessshall not, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or shall not permit any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company to, enter into or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant amend or other provision limiting modify in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material manner materially adverse to the Company and its Subsidiaries taken as a whole;
whole (xii) that any contract or agreement (A) described in clause (i) and clause (ii) of the definition of “Company Contract”, (B) containing actual or contingent obligations of the Company or its Subsidiaries secured by a lien (other than Permitted Encumbrances) in excess of $15.0 million (except as otherwise permitted by Section 4.1(l)) (C) pursuant to which the Company or any of its Subsidiaries is a license (or a covenantburdened from continuing indemnification, consent “earn out” or other rights contingent payment obligations that in each case would reasonably be expected to result in payments in excess of $5.0 million (provided, that nothing in this clause (i)(C) shall prohibit entering into customer agreements and supply agreements in the ordinary course of business consistent with past practice) or to use Intellectual Property(D) of Third Party Rights granted to under which the Company or any Subsidiary of the Company (A) on is the landlord, tenant, subtenant or occupant with respect to real property that has an exclusive basisaggregate value, (B) on a non-exclusive basis, if pursuant or involves payment by or to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of more than $1,000,000 during the fiscal year ended January 3125.0 million or (ii) any supply or sales agreement that has an aggregate value, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require involves payment by or to the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement 75.0 million on an annual basis or (z) that subjects has an aggregate value, or involves payment by or to the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other of more than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ $150.0 million for the duration of the agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(aexcept for renewal(s), whether made following reasonable advance notice to Parent, on substantially similar terms of existing contracts or not set forth in Section 4.15(a) replacements of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding existing contracts with new counterparties on the Company or the applicable Subsidiary of the Company, as the case may be, and, substantially similar terms to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectexisting contract being replaced.
Appears in 2 contracts
Sources: Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)
Material Contracts. (a) Except (i) as for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC DocumentsReports, (ii) for this Agreement and the other agreements entered into Contracts listed in connection with Subsections (i) through (xxi) of Section 3.16(a) of the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule, as of the date hereofOriginal Execution Date, neither the Company nor any Subsidiary none of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party to or bound by the following Contracts:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company or any other partnership, joint venture, strategic collaboration, global affiliation or business cooperation, limited liability company or similar arrangement;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business pursuant business) or advance to which (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any such loan, advance or investment for more than US$5,000,000;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries have material continuing obligationsof more than US$5,000,000;
(v) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000;
(vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances;
(vii) containing any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(Aviii) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a covenant fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) any Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other provision limiting dispute with amount in controversy greater than US$5,000,000;
(x) any Contract involving a standstill or similar arrangement;
(xi) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any Subsidiary of the Company its Subsidiaries to compete or engage in any line of business or to compete with any Person in any geographic area, industry or line of business;
(xii) any Contract for the employment of any senior executive officer;
(xiii) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of the Original Merger Agreement, this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any customary employee non-solicitation payment in excess of US$5,000,000 to be made by the Company or no-hire clauses entered into any of its Subsidiaries in any calendar year or (B) the ordinary course value of businessthe outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right pledging of first refusal or right of first offer or similar right that limits the ability share capital of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) issuance of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which guarantee by the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024Subsidiaries;
(xivxvi) that is any Contract providing for (A) a settlementlicense, conciliation covenant not to ▇▇▇ or similar Contract (x) with other right granted by any Governmental Authority entered into since February 1, 2021, (y) which would require Third Party under any Intellectual Property to the Company or any of its Subsidiaries Subsidiaries, (B) a license, covenant not to pay consideration of more than $1,000,000 after the date of this Agreement ▇▇▇ or (z) that subjects other right granted by the Company or any of its Subsidiaries to any material ongoing requirements or restrictions Third Party under any Intellectual Property, (other than ordinary course confidentiality requirements or restrictions);
(xvC) an indemnity of any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or relating to dispositionviolation of any Intellectual Property right, voting or dividends with respect (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any equity securities person by reason of the ownership, use, sale or disposition of Intellectual Property, in each case of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries; or, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xvixix) is each Control Agreement and any other any Contract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an affiliate “Operating Subsidiary”), (B) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Person Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed under Item 404 if the Form 20-F were filed as of Regulation S-K promulgated under the Exchange ActOriginal Execution Date); or
(xxi) any other Contract which, other than any if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract solely among described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, SEC Reports is referred to herein as a “Material Contract.” ”
(b) Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither : (i) each Material Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Company nor any Subsidiary Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company has, and, to the Knowledge knowledge of the Company, none of the other parties thereto haveno counterparty, violated any provision is or is alleged to be in breach or violation of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts ; (or failures to activ) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge knowledge of the Company, neither the Company nor no person intends to terminate any Subsidiary Material Contract; and (v) none of the Company has received written notice execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the foregoing. To the Knowledge rights of the Company, since February 1, 2021, no counterparty to any Group Company under any Material Contract Contract. The Company has (A) canceled furnished or otherwise terminatedmade available to Parent true and complete copies of all Material Contracts, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or including any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectamendments thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as set forth on Section 3.16 of the date hereofDisclosure Schedule, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contract:
any: (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
collective bargaining agreement or contract with any labor union; (ii) that bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock purchase, stock option, stock appreciation or similar plan; (iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis involving an annual compensation commitment by the Company or a Subsidiary in excess of $200,000; (v) agreement or indenture relating to the borrowing of money in excess of $1,000,000 or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien (as defined herein)) on any material portion of the Company's assets; (vi) guaranty of any obligation for borrowed money in excess of $1,000,000; (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000, (viii) contract or group of related contracts with the ten same party for the purchase of inventories, supplies or services, under which the undelivered balance of such inventories, supplies or services has a selling price in excess of $1,000,000; (10ix) largest customers contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $1,000,000; (x) agreement pertaining to Intellectual Property (as hereinafter defined) including, license agreements or similar arrangements; or (xi) contract which prohibits or materially limits the Company or a Subsidiary in any material respect from freely engaging in business in the United States or anywhere else in the world (all such contracts and agreements, "Material Contracts"). The Company has provided or made available to ICS (i) true and complete copies of all written Material Contracts, or (ii) with respect to such Material Contracts that have not been reduced to writing, a written description thereof, each of which is listed on Section 3.16 of the Disclosure Schedule. Neither the Company and nor any of its Subsidiaries during is, or has received any notice or has any knowledge that any other party is, in default in any respect under any such Material Contract, except for those defaults which would not reasonably be likely, either individually or in the fiscal year ended January 31aggregate, 2024 to have a Material Adverse Effect with respect to the Company; and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a material default. For purposes of this Agreement, "Permitted Liens" shall mean (as determined based on revenue received from such customers during such time periodi) Liens for Taxes (excluding any non-disclosure agreementsother than those pursuant to Section 412 of the Code) or governmental assessments, data processing agreementscharges or claims, purchase orders the payment of which is not yet due, or statements for Taxes, the validity of work which are being contested in good faith by appropriate proceedings; (ii) statutory Liens incurred in the ordinary course of business for sums not yet due or invoices entered into being contested in good faith; (iii) Liens relating to deposits made in the ordinary course of business, ; and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for Liens which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or do not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither aggregate materially interfere with or materially impair the Company nor any Subsidiary conduct of the Company hasBusiness as it is currently being conducted, andor the value, to the Knowledge marketability, use or ownership of the Company, none of the other parties thereto have, violated any provision of, or committed or failed asset to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectit attaches.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Microclock Inc)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as As of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company is and its Subsidiaries are not a party to or is bound by any Contract:
(i) that is 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 Exchange Act)SEC;
(ii) that is or creates a Partnership with the ten (10) largest customers of any other Person that is material to the Company and its Subsidiaries, taken as a whole, or that relates to the formation, operation, management or control of any such Partnership;
(iii) that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases) in excess of $1,500,000 (other than agreements between the Company and any wholly owned Subsidiary or between wholly owned Subsidiaries) or pursuant to which the Company or any of its Subsidiaries during guarantees any such indebtedness of any other Person (other than the fiscal year ended January 31Company or another wholly owned Subsidiary), 2024 (B) materially restricts the Company’s 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 determined based on revenue received from such customers during such time perioda whole, or (D) (excluding any non-disclosure agreementsis an interest rate derivative, data processing agreements, purchase orders currency derivative or statements of work or invoices other hedging contract other than foreign currency cash flow ▇▇▇▇▇▇ entered into in the ordinary course of business, business and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (classified as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)cash flow ▇▇▇▇▇▇ for accounting purposes;
(iv) that is a Government ContractContract (other than this Agreement) for the acquisition of any corporation, partnership or limited liability company or business, or sale of any of its Subsidiaries or businesses after the date hereof, in each case with a fair market value or purchase price (including assumption of debt) in excess of $5,000,000 (other than (x) in the ordinary course of business or (y) intercompany agreements);
(v) evidencing that is a capital expenditure Contract (including any Contract providing for the outsourcing, contract manufacturing, testing, assembly or fabrication (as applicable of any products, technology or services of the Company or any of its Subsidiaries)) under which future the Company and its Subsidiaries have made or received payments are required in excess of $5,000,0001,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(vi) relating that is a dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for the disposition or acquisition of any business, equity, or all or substantially all Company Products (A) with a third party that is one of the assets of any Person for aggregate consideration Company’s top twenty (20) customers by revenue in fiscal year 2014 or 2015 or (B) under which the Company and its Subsidiaries have made or received payments in excess of $5,000,000 1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(vii) with respect to the acquisition or disposition of any corporation, partnership, limited liability company or business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of capital stock, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries outside has (A) material continuing indemnification obligations (and was entered into after March 1, 2005), or (B) any “earn-out” or similar contingent payment obligations in excess of $5,000,000 (other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationscourse);
(viiviii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) that contains a right of first refusal refusal, first offer, or right of first offer negotiation, or similar right that limits the ability of the Company a call or put right, with respect to any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, asset that is material to the Company and its Subsidiaries, taken as a whole;
(viiiix) relating to that prohibits or evidencing indebtedness for borrowed money, debt securities, warrants restricts the payment of dividends or other rights to acquire any debt securities, of the Company or any Subsidiary distributions in respect of the Company, ’s shares or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contractcapital stock;
(x) that is a license (purchase or a covenant, consent sale agreement with any Significant Customer or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to Significant Supplier under which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholehave made or received payments in excess of $1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(xi) that is a license under which (or a covenant, consent or A) any person (other rights in or to use Intellectual Property) of Third Party Rights granted to than the Company or any Subsidiary of the Company (Aits wholly owned Subsidiaries) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which is guaranteeing any liabilities or obligations of the Company or any Subsidiary made payments during the fiscal year ended January 31of its Subsidiaries, 2024 in excess of $1,000,000, and/or or (CB) that is otherwise material to the Company and or any of its Subsidiaries taken as a wholehas “take-or-pay” obligations;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which between the Company or any of its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ respective directors or officers or stockholders who own five percent (5%) or more of the Company Common Stock, other than (A) any Benefit Plan or any other employee agreements or arrangements, (B) transactions conducted on an arms’ length basis or (C) any agreements with consideration of less than $200,000;
(xiii) providing for the creation or imposition of any Lien, other than a Permitted Lien, with respect to any assets (including Intellectual Property or other intangible assets) material to the conduct of the business of the Company and its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31as currently conducted, 2024taken as a whole;
(xiv) that is a settlement, conciliation or similar Contract agreement (x) with any Governmental Authority entered into since February 1Entity which (A) materially restricts or imposes material obligations upon the Company or its Subsidiaries, 2021or (B) materially disrupts the business of the Company and its Subsidiaries as currently conducted, or (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 2,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);Agreement; or
(xv) with any stockholders’ agreementGovernmental Entity, proxyor for the purpose of fulfilling a Contract or order from any Governmental Entity as the ultimate customer, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating that is material to any equity securities the conduct of the Company or any business of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
Subsidiaries as currently conducted, taken as a whole. Each such Contract described in clauses (bi)-(xv) Each Contract of the type described above in or Section 4.15(a4.8(c), whether or not set forth in Section 4.15(a) of the together with each material Company Disclosure ScheduleLicense-In Agreement, is referred to herein as a “Material Contract”.”
(b) Except for as would not reasonably be expected to have, individually or in the aggregate, a Company Material Contracts that have expired or terminated by their termsAdverse Effect, all of the (i) each Material Contracts are (A) valid and binding on Contract is enforceable against the Company or the applicable Subsidiary of the Company, as the case may be, in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity effect and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of or its Subsidiaries, on the Company hasone hand, and, to the Knowledge of the Company, none of the each other parties thereto have, violated any provision of, or committed or failed party to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any each Material Contract, except in each case for those violationson the other hand, acts (or failures have performed all obligations required to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company performed by it under such Material Adverse Effect Contract and, as of February 1, 2021, to the Knowledge of the Company, neither no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract, or (C) give any Person the right to cancel, terminate or modify any Material Contract.
(c) As of the date of this Agreement, the Company nor is not a party to or bound by any Subsidiary Contract that (i) contains any provisions materially restricting the right of the Company has received written notice or any of its Subsidiaries (A) to compete or transact in any business or with any Person or in any geographic area, or (B) to acquire any material product or other asset or service from any other Person; (ii) grants exclusive rights to license, market, sell or deliver any Company Product; or (iii) contains any “most favored nation” or similar provisions in favor of the other party and relates (or would reasonably be expected to relate) to payments in excess of $1,000,000 in any of fiscal years 2014, 2015 or 2016.
(d) (x) There are no licenses granted to third parties under any of the foregoing. To Contracts set forth in Section 4.8(d)(i), Section 4.8(d)(ii) or Section 4.8(d)(iii) of the Company Disclosure Schedule (collectively, the “Specified Contracts”), and (y) to the Knowledge of the Company, since February 1there are no other Contracts to which the Company or its Subsidiaries is a party, 2021in the case of clause (x) or (y), no counterparty to that would, as a result of the change of control of the Company contemplated by this Agreement, the Closing or the fact of Parent or any Material Contract has of its Affiliates (Aother than the Company or its Subsidiaries) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with becoming an Affiliate of the Company or any Subsidiary of its Subsidiaries, grant to any third party a license or right to a license with respect to Parent’s or its Affiliates’ (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with excluding the Company and its Subsidiaries other thanSubsidiaries) Intellectual Property following the Closing, in each case, case except as would not reasonably be expected to have a Material Adverse Effectmaterially adversely impact Parent and its Affiliates’ (excluding the Company and its Subsidiaries) business.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (PMC Sierra Inc), Merger Agreement (PMC Sierra Inc)
Material Contracts. (a) Except (i) as filed as exhibits to Section 6.1(A)(t)(i) of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Allergan Disclosure Schedule sets forth a list as of the date hereof, neither the Company nor any Subsidiary of this Agreement of each of the Company is a party to or is bound by following Contracts (other than any Contract:
(iAllergan Benefit Plan) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company Allergan or any of its Subsidiaries outside is a party or by which it is bound (each such Contract required to be so listed, and each of the ordinary course following types of business Contracts (other than any Allergan Benefit Plan) described below to which Allergan or any of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, an “Allergan Material Contract”):
(A) each (i) acquisition or divestiture Contract (including any Contracts pursuant to which any member of the Company Allergan Group has transferred or its Subsidiaries have material continuing obligations;
agreed to transfer ownership of any Intellectual Property) and (viiii) containing license (Aincluding any in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a covenant maximum potential value (or which otherwise requires the receipt or making of payments) in excess of $100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other provision limiting in any material respect the ability of the Company contingent payment or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessvalue obligations), (By) “most favored nation”, “exclusivity” or similar provisions, (C) a right involves the issuance of first refusal or right any Equity Securities of first offer or similar right that limits the ability of the Company Allergan or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after following the date of this Agreement or (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that subjects is material to Allergan and its Subsidiaries, taken as a whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100 million;
(C) any Contract that (x) limits or purports to limit, in any material respect, the Company freedom of Allergan or any of its Subsidiaries 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 ongoing requirements respect, the freedom of AbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions (other than ordinary course confidentiality requirements that restrict or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating purport to any equity securities of the Company restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(D) any Contract relating to dispositionthird party indebtedness for borrowed money in excess of $100 million (whether incurred, voting assumed, guaranteed or dividends with respect to secured by any equity securities asset) of the Company Allergan or any of its Subsidiaries; or;
(xviE) is with an affiliate any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other Person that would be required similar agreement, which is material to be disclosed under Item 404 the Allergan Group, taken as a whole;
(G) any Contracts or other transactions with any (A) executive officer or director of Regulation S-K Allergan, or (B) affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.associates” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice members of any of the foregoing. To the Knowledge their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Company, since February 1, 2021, no counterparty to any Material Contract has (AExchange Act) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in executive officer, director or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.beneficial owner;
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement
Material Contracts. (a) Except (i) as for this Agreement and the Contracts filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansReports, as of the date hereof, neither the Company nor any Subsidiary none of the Company or its Subsidiaries is a party to or is bound by any Contractby:
(i) any Contract that is a “material contract” (as such term is defined in required to be filed by the Company pursuant to Item 601(b)(10) 4 of Regulation Sthe Instructions to Exhibits of Form 20-K of F under the Exchange Act);
(ii) that is with any Contract involving the ten (10) largest customers payment or receipt of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 amounts by the Company or any of its Subsidiaries outside Subsidiaries, or relating to indebtedness for borrowed money or any financial guarantee, of the ordinary course of business pursuant to which the Company or more than US$3,500,000 in any calendar year on its Subsidiaries have material continuing obligationsface;
(viiiii) containing (A) any Contract that contains a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic areaput, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer call or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess could be required to purchase or sell, as applicable, any equity interests of $1,000,000 during the fiscal year ended January 31, 2024any Person or assets that have a fair market value or purchase price of more than US$100,000;
(xiviv) that is a settlementany Contract relating to the formation, conciliation creation, operation, management or similar control of any joint venture;
(v) any Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require between the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement and any director or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities executive officer of the Company or any of its Subsidiaries Person beneficially owning five percent or relating to disposition, voting or dividends with respect to any equity securities more of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be outstanding Shares required to be disclosed under pursuant to Item 404 7B or Item 19 of Regulation SForm 20-K promulgated F under the Exchange Act, ; and
(vi) any non-competition Contract or other than Contract that limits or purports to limit in any Contract solely among material respect the type of business in which the Company and or its wholly-owned Subsidiaries.
(b) Each Contract of Subsidiaries may engage, the type described above in Section 4.15(a), whether of goods or not set forth in Section 4.15(a) of services which the Company Disclosure Scheduleor its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in which any of them may so engage in any business or use their assets. Each such Contract described in clauses (i) through (vi) above is referred to herein as a “Material Contract”.”
(b) Except for as would not have, individually or in the aggregate, a Material Contracts that have expired or terminated by their termsAdverse Effect, all (i) each of the Material Contracts are (A) is valid and binding on the Company or the applicable Subsidiary of the Companyits Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium subject to the Bankruptcy and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity Equity Exception and (ii) as would not, individually there is no breach or in the aggregate, reasonably be expected to have a Company default under any Material Adverse Effect. Neither Contract by the Company nor or any Subsidiary of the Company has, and, its Subsidiaries and to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (has occurred that with or without notice, the lapse of time or both) the giving of notice or both would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with thereunder by the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Schedule 5.14 sets forth a correct list as of the date hereof, neither hereof of all of the Company nor Contracts of the following types to which any Subsidiary of the Company Entities is a party to or by which any of the Company Entities or their respective properties or assets is bound by any Contractor receives a benefit under:
(ia) that is all Contracts providing for a “merger, consolidation, acquisition or sale of all or a material contract” (to the Company Entities, taken as such term is defined in Item 601(b)(10a whole) of Regulation S-K portion of the Exchange Actassets of, or other extraordinary transaction in respect of, any Company Entity with or to any other Person, or any material capital investment in any Person, in each case entered into since January 1, 2017 or pursuant to which any Company Entity has any ongoing indemnification or other similar surviving obligations;
(b) any Contract (other than purchase orders or sales orders) entered into with a customer or supplier which involves the payment or receipt of an amount in excess of Five Million Dollars ($5,000,000) per annum (measured by the trailing (12) month period ending on the Interim Balance Sheet Date) and which cannot be terminated within ninety (90) days;
(c) for the purchase of materials, supplies, goods, services, equipment or other assets, which is with a Material Supplier (other than purchase orders);
(iid) that for the sale or license by a Company Entity of materials, supplies, goods, services, equipment or other assets, which is with the ten a Material Customer (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiariesthan sales orders);
(iiie) that is with the ten (101) largest vendors requires a Company Entity to purchase its total requirements of the Company and its Subsidiaries during the fiscal year ended January 31any product or service from a third party or that contains “take or pay” provisions, 2024 (as determined based on cost of goods and services paid 2) contains a “most-favored-nation” clause or similar term that provides preferential pricing or treatment to such vendors by the Company during such time periodany third party, (3) (excluding contains any non-disclosure agreements, data processing agreements, purchase orders competition or statements non-solicitation covenant by a Company Entity in favor of work another Person or invoices entered into in otherwise limits the ordinary course freedom of business, and other similar Contracts that are ancillary a Company Entity to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business in any area or to compete with (4) grants any Person in any geographic areaan option or a first refusal, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar preferential right to purchase or acquire any assets of any Company Entity;
(f) that limits is with a Governmental Authority;
(g) that is between a Company Entity, on the ability one hand, and any Related Party or EIS, on the other hand (each, an “Affiliate Agreement”);
(h) any credit agreement, loan agreement or indenture relating to Indebtedness of a Company Entity;
(i) any Contract under which the Company Entities have permitted any material asset to become encumbered by a Lien (other than a Permitted Lien);
(j) that provides for, directly or indirectly, the establishment or operation or a partnership or joint venture, or otherwise involves a sharing of profits, losses, costs or liabilities with any Person;
(k) pursuant to which a Company Entity effected any compromise or settlement of any Proceeding since the Interim Balance Sheet Date;
(l) the primary purposes of which is the indemnification of any other Person by a Company Entity;
(m) that provides for a retention, severance, change in control or sale bonus payment in excess of One Hundred Thousand Dollars ($100,000) (or would provide for such bonus subject to the satisfaction of any conditions or contingencies) and any Company Retention Bonus Agreements;
(n) (A) that is a written Contract for the employment of any Employee located outside of the Company United States (i) with annual base salary and target annual cash bonus in excess of $150,000; (ii) that is not terminable at will or any upon notice of its Subsidiaries sixty (60) days or less for a cost (exclusive of costs arising prior to sell, transfer, pledge or otherwise dispose termination) of assets, rights or properties less than $200,000; or (Diii) that would result in any payments to such person upon consummation or solely as a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation result of the Merger; (B) that is a written Contract for the employment of any Employee located in the United States (x) with an annual base salary in excess of $150,000; (y) that is not terminable at will; or (z) that would result in any payments to such individual upon the consummation or as a result of the Merger (either alone or in combination with another event);
(o) any Contract providing for a license to a Company and its SubsidiariesEntity of Company Licensed Intellectual Property (other than licenses of commercially available Software licensed under a click-wrap or shrink-wrap license or subscription agreement, in each case, that is material to on a non-exclusive basis and having an annual license, subscription or maintenance fee of $250,000 or less in the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Companyaggregate);
(ixp) any hedging, swap, derivativelease or agreement under which a Company Entity is lessee of, or similar Contractholds or operates any personal property owned by any other party, for which the annual rent exceeds $250,000;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (Bq) pursuant to which a Company Entity has made or may make a capital investment in, loan to, acquisition or divestiture of the Equity Interests or assets of, any Person, or the acquisition or divestiture of any business or third Person; and
(r) any Contract providing for a license by a Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess Entity of $1,000,000, Company Owned Intellectual Property to a third party (other than non-exclusive licenses granted to a Company Entity’s, resellers and end-user customers in connection with the sale, distribution or use of a Company Entity’s products and services in the ordinary course of business). The Company has provided to Purchaser a true and complete copy (or, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities oral Contract, a written summary of the Company material terms and conditions of such oral Contract) of each Contract set forth or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(aon Schedule 5.14 (including all amendments, modifications, exhibits and schedules) of (collectively with the Company Disclosure ScheduleReal Property Leases, is referred to herein as a the “Material Contract.” Except for Contracts”). Each Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) Contract is in full force and effecteffect and constitutes a legal, except (i) as may be limited by bankruptcyvalid, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles binding obligation of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Entity, and to the Company’s Knowledge, the other party or parties thereto, enforceable against such Company Entity, and to the Company’s Knowledge, such other party or parties in accordance with its terms, subject to the Enforceability Limitations. The Company Entities have performed or complied with all material covenants and obligations under each Material Adverse Effect. Neither Contract, and neither the Company nor any Subsidiary of the Company has, andEntities nor, to the Knowledge of the Company’s Knowledge, none of the any other parties thereto have, violated any provision ofparty to a Material Contract is in, or committed is alleged to be in, material breach of or failed to perform any act underdefault under such Material Contract, and no nor has there occurred an event or condition exists, which (that with or without notice, lapse the passage of time or giving of notice (or both) would constitute such a material breach of or default underby a Company Entity or to the Company’s Knowledge, the provisions of any other party to such Material Contract, except in each case for those violations, acts (or failures . No party to act) and defaults which, individually or in the aggregate, would not reasonably be expected a Material Contract has provided notice to have a Company Material Adverse Effect and, as of February 1, 2021, Entity that it plans to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to terminate any Material Contract has (A) canceled or otherwise terminatedor, or threatened if in writing (or to cancel or otherwise to terminatethe Company’s Knowledge, oral), materially reduce its relationship business with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectEntities.
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Material Contracts. (a) Except (ias set forth on Schedule 3.7(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company no Seller Party is a party to or bound by, and the Acquired Assets are not subject to, any of the following Contracts (in each case below, to the extent that the same relates primarily to, or is bound by any Contract:otherwise necessary to the operation of the Business, the Acquired Assets or the Assumed Liabilities):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) any Contracts for the purchase or sale of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices Inventory entered into in the ordinary course of business, and other similar which either individually or in conjunction with Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of businesssame party, and in connection with the same matter, relate to commitments in excess of $25,000 per annum (including any agreements requiring the payment of any royalties, milestones, minimum purchase payments or other similar Contracts that are ancillary to Contracts pursuant to which cost guarantees made by or on behalf of goods and services is paid or payable by the Company);
(ii) any Contracts relating to the purchase, lease or similar arrangement of any machinery, equipment, furniture, fixture or similar property having a value in excess of $25,000;
(iii) any Contracts with (A) any director, officer, employee or Affiliate of any Seller Party involving payments in excess of $5,000 per annum (or the equivalent amount in another currency), or (B) to the Knowledge of the Seller Parties, any Affiliate or family member of any of the foregoing involving payments in excess of $5,000 per annum;
(iv) any agreement with any independent contractor or similar Contract that (x) involves the payment or receipt of more than $25,000 per annum and (y) is a Government Contractnot terminable within thirty (30) days’ notice or less without penalty, liability or premium;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000any currently effective collective bargaining or union agreements with respect to its employees;
(vi) any agreement (A) restricting any Seller Party from engaging, participating, or competing with any other Person, in any line of business, market or geographic area, or to make use of any Intellectual Property Rights; (B) granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal or rights of first negotiation to any other Person; (C) otherwise limiting the right of any Seller Party to make, use, sell, offer for sale, import, or distribute any Acquired Technology or services related thereto; or (D) any agreement pursuant to which any Seller Party has granted exclusive rights with respect to the Acquired Technology, including any Intellectual Property Rights;
(vii) any agreement of guarantee, credit support, assumption or endorsement of, any indebtedness for borrowed money of other Persons;
(viii) any line of credit, standby financing, revolving credit or other similar financing arrangement of any sort that is secured by any Acquired Assets;
(ix) any agreement relating to any joint venture or partnership arrangement between any Seller Party, on the disposition one hand, and a third party, on the other hand;
(x) any leases for real property or acquisition personal property;
(xi) any distributorship, customer sales or leasing Contracts under which any Seller Party is currently providing or receiving products or services and involving more than $25,000 per annum; and
(xii) any Contract of indemnification or warranty, other than (A) under a Seller Party’s unmodified forms of standard customer/distribution agreements, the forms of which have been made available to the Purchaser or its counsel, or (B) warranties implied by Law;
(xiii) any business, equityContract pursuant to which any Seller Party has acquired or divested 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 or sale of assets, license or otherwise;
(xiv) any Person for aggregate consideration Contract with any Governmental Entity;
(xv) any confidentiality, secrecy or non-disclosure Contract in excess of $5,000,000 by the Company effect other than (A) any such Contract entered into with customers or any of its Subsidiaries outside of distributors in the ordinary course of business pursuant to a Seller Party’s standard unmodified form (a copy of which has been made available to the Purchaser or its counsel) and (B) any such Contract entered into in connection with a possible disposition by the Company or its Subsidiaries have material continuing obligationsof the Business, the terms of which prohibit the applicable Seller Party from disclosing the existence of such Contract, the parties thereto and/or the provisions thereof;
(viixvi) containing (A) any agreement pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a covenant result of the execution of this Agreement or the consummation of the transactions contemplated hereunder, either alone or in combination with any other provision limiting in any material respect event, which trigger or exercise of rights, consequence, result or effect would materially impair the ability of the Company Purchaser to consummate the transactions hereunder or operate the Business after Closing; and
(xvii) any Subsidiary Contracts related to research or development with respect to Acquired Technology. The agreements, documents and instruments set forth on Schedule 3.7(a) of the Company Disclosure Schedule are collectively with the KNE Contracts referred to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) herein as “most favored nationMaterial Contracts”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or . Except as otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(aSchedule 3.7(a) of the Company Disclosure Schedule, is referred true, complete and correct copies of each document or instrument constituting a Material Contract in its complete, current and up-to-date version and true, complete and correct written description of the material terms of any non-written Contract listed on Schedule 3.7(a) of the Company Disclosure Schedule (Material Contracts) have been made available to herein the Purchaser by virtue of having been posted on the electronic data room.
(b) Except as a “Material Contract.” Except for Material Contracts that have expired or terminated by their termsset forth on Schedule 3.7(b) of the Company Disclosure Schedule, all of the Material Contracts are (A) valid and valid, binding on the Company or the applicable Subsidiary of the Companyin accordance with their respective terms, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except and enforceable against (i) the Seller Party or KNE (as applicable) which are a party thereto, and (ii) to the Knowledge of the Seller Parties and KNE, each third party which is party thereto, in accordance with their respective terms, except, in each case, to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and or other similar Applicable Law Laws affecting the enforcement of creditors’ rights generally and by general principles of equity and (ii) as would notequity, individually regardless of whether such enforceability is considered in a proceeding at law or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary equity.
(c) Except as set forth on Schedule 3.7(c) of the Company hasDisclosure Schedule, and, to the Knowledge of the Company, none of the other parties thereto have, violated neither any provision of, Seller Party nor KNE is in default under or committed in breach or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions violation of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021Seller Parties, no counterparty other party is in default under or in breach or violation of any Material Contract.
(d) The agreements, documents and instruments set forth on Schedule 3.7(d) of the Company Disclosure Schedule are referred to herein as the “KNE Contracts”. Other than the KNE Contracts, KNE is not a party to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spectranetics Corp), Asset Purchase Agreement (Kensey Nash Corp)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and for the other agreements entered into in connection Contracts filed with the transactions contemplated hereby SEC by the Company as exhibits to reports, schedules, forms, statements, and (iiiother documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, Section 4.01(p) for of the Company Employee PlansDisclosure Schedule sets forth a true and complete list, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contractof:
(i) each Contract that is would be 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 under the Exchange Securities Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant each Contract to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) is a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right party that limits materially restricts the ability of the Company or any of its Subsidiaries to sellcompete in any business or with any person in any geographical area or grants a material right of first refusal or first offer or similar right (or will impose such limitations on Parent or any of its Affiliates following the Offer or the Merger);
(iii) each Contract that requires payments by or to the Company and/or its Subsidiaries in an amount in excess of five hundred thousand dollars ($500,000) per annum, transferexcept for any such Contract that may be canceled, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” without penalty or other contingentliability to the Company or any of its Subsidiaries, deferred upon notice of 90 days or fixed payment obligation less other than sales or purchase orders in the ordinary course of business;
(iv) each Contract relating to indebtedness for borrowed money in excess of five hundred thousand dollars ($500,000) or providing for the creation of any encumbrance upon any of the material assets of the Company and or any of its Subsidiaries;
(v) each Contract that is a material license, in each case, sublicense or other contract pursuant to which the Company or a Subsidiary of the Company is authorized to use any third party Intellectual Property that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary business of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each caseexcluding generally commercially available, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its whollyoff-owned Subsidiaries or between or among any whollythe-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivativeshelf software programs, or similar Contract;
pursuant to which any third party (x) that is a license (or a covenant, consent or other rights in or authorized to use Material Intellectual Property) granted Property owned by the Company or any Subsidiary of the Company that is material to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the business of the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 (y) has obtained and continues to have exclusive rights in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeMaterial Intellectual Property;
(xivi) that is a license (each Contract with respect to co-promotion of, or a covenantcollaboration with respect to, consent any product or other rights in product candidate or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basisdrug discovery platform, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, venture or material partnership agreement (excluding information technology Contracts or license or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) agreements with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries respect to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictionsIntellectual Property);
(xvvii) any stockholders’ agreement, proxy, voting trust agreement each Contract which would prohibit the consummation of the Offer or registration rights agreement the Merger; and
(viii) each Contract with or similar agreements, arrangements or commitments relating to any equity securities of binding upon the Company or any of its Subsidiaries or relating to disposition, voting any of their respective properties or dividends with respect to any equity securities assets that is of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person type that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Securities Act, other than any . Each such Contract solely among the Company and its wholly-owned Subsidiaries.
described in clauses (bi) Each Contract of the type described through (viii) above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” Except for ”. Including Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, the Company has previously made available to Parent complete and accurate copies of each Company Material Contract. Each of the Company Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) is valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, Company party thereto and, to the Knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) as may for such failures to be limited by bankruptcy, insolvency, moratorium valid and other similar Applicable Law affecting creditors’ rights generally binding or to be in full force and by general principles of equity and (ii) as effect that would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither There is no default under any Company Material Contract by the Company nor or any Subsidiary of the Company has, andits Subsidiaries or, to the Knowledge of the Company, none of the by any other parties thereto have, violated any provision of, or committed or failed to perform any act underparty thereto, and no event or condition exists, which (has occurred that with or without notice, the lapse of time or both) the giving of notice or both would constitute a breach default thereunder by the Company or any of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021its Subsidiaries or, to the Knowledge of the Company, neither the Company nor by any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other thanparty thereto, in each case, case except as would not reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Material Contracts. (a) Except Section 4.16 of the Seller Disclosure Letter sets forth a true, correct and complete list of each of the following contracts and other agreements (i) as filed as exhibits to including any amendments thereto), other than any Affiliate Contract, in effect on the Company SEC Documents, (ii) for date of this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor to which any Subsidiary of the Subject Company is a party or which is primarily associated with the Retail Business and to which the Seller or any of its Affiliates (other than any Subject Company) is bound by any Contracta party:
(i) any Contracts and other agreements that is a “material contract” (as such term is defined contain covenants prohibiting or limiting the right to compete of any Subject Company or prohibiting or restricting the ability of any Subject Company to deal with any Person or in Item 601(b)(10) of Regulation S-K of any geographical area and that will be binding on the Exchange Act)Subject Companies following the Closing;
(ii) that is with the ten (10) largest customers of the Company any Contracts and its Subsidiaries during the fiscal year ended January 31other agreements relating to partnerships, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure limited liability company agreements, data processing agreements, purchase orders joint ventures or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)arrangements;
(iii) any Contracts and other agreements that is with the ten (10) largest vendors include any obligation to make payments, contingent or otherwise, arising out of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost prior acquisition or disposition of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of a business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) any Contracts and other agreements for the acquisition, sale, lease or disposition of any site leases or equipment capital assets that is a Government Contractrequire payment of or delivery of assets valued at $1,000,000 individually (or in the aggregate, in the case of any related series of contracts and other agreements);
(v) evidencing a capital expenditure for which future payments any Contracts that are required in excess of $5,000,000collective bargaining agreements;
(vi) relating any Contracts that are settlement, conciliation or similar agreements with any Governmental Authority and pursuant to which outstanding obligations must be satisfied by any of the disposition or acquisition Subject Companies after the execution date of any business, equitythis Agreement, or all any such agreements with one or substantially all more private parties pursuant to which the Subject Companies will be required after the execution date of the assets of any Person for aggregate this Agreement to pay consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations175,000;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license Contract with the Texas General Land Office (or a covenant, consent or other rights in or to use Intellectual Propertythe “GLO”) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess sale of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021electric power, (y) any Contract for the sale of electric power to any commercial and industrial customer (other than any Contract with the GLO) which would require is within the Company or any top 75% (by forecasted volume March 1, 2009 forward) of its Subsidiaries Contracts with commercial and industrial customers (other than the GLO) as of three days prior to pay consideration of more than $1,000,000 after the date of this Agreement or (z) any master agreement for ERCOT supply (including natural gas, renewable energy credits and other commodity hedging); provided, however that subjects identifying information with respect to certain commercial and industrial customers and certain counterparties subject to confidentiality restrictions has been redacted and is not provided in Section 4.16 of the Seller Disclosure Letter;
(viii) any Contracts under which a Subject Company has created, incurred, assumed or guaranteed any outstanding indebtedness for borrowed money, any capitalized lease obligation or any other indebtedness, or under which such Subject Company has imposed a security interest or Encumbrance (other than a Permitted Encumbrance) on any of its assets, tangible or intangible;
(ix) any outstanding agreements of guaranty or surety by a Subject Company, or by the Seller or any of its Subsidiaries to any material ongoing requirements or restrictions the Seller’s Affiliates (other than ordinary course confidentiality requirements or restrictions)a Subject Company) for the benefit of a Subject Company;
(xvx) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of Contract with the Company Seller or any of its Subsidiaries or the Seller’s Affiliates relating to dispositionthe future provisions of goods or services related to the Retail Business and which requires any future payment in excess of $1,000,000 in the aggregate during any twelve (12) month period;
(xi) any employment Contract providing annual compensation in excess of $150,000;
(xii) any consulting Contract providing annual compensation in excess of $250,000;
(xiii) any Contract under which a Subject Company has advanced or loaned any amount to any of its directors, voting officers and employees outside the ordinary course of business; and
(xiv) any Contracts with any employee that require payment or dividends increased obligations to such employee by or on behalf of the Subject Companies to any employees of the Subject Companies as a result of the transactions contemplated by this Agreement or which impose severance or termination payment obligations on any Subject Company, or, with respect to any equity securities of the Company or any of its Subsidiaries; Continuing Employee or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Seller, any former employee of the Subject Companies whose employment was primarily sales related, which contain non-competition restrictions in favor of any Subject Company, each other party thereto, and .
(Bb) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company Seller nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Subject Company has received written notice of any material default on the part of any Subject Company under any contract or other agreement referred to in Section 4.16(a). No Subject Company is in breach or default under any such contract or other agreement, except for any such breach or default which would not reasonably be expected to result in a Subject Company liability that is material to the foregoingSubject Companies, taken as a whole. To the Knowledge of the CompanySeller, since February 1, 2021as of the date of this Agreement, no counterparty other party to any Material Contract has (A) canceled such contract or otherwise terminated, other agreement is in breach or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other thandefault, in each either case, as would not reasonably be expected to have a Material Adverse Effectin any material respect thereunder.
Appears in 2 contracts
Sources: LLC Membership Interest Purchase Agreement (NRG Energy, Inc.), LLC Membership Interest Purchase Agreement (Reliant Energy Inc)
Material Contracts. (a) Except (iSet forth in Schedule 3.14(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plansis a list, as of the date hereof, neither the Company nor any Subsidiary of each of the Company following Contracts to which SPPR or any of its Affiliates is a party related to the Contributed Assets or is by which any of the Contributed Assets are bound by any (each a “Material Contract:”):
(i) any Contract related to the Contributed Assets that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K would limit the right of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company Partnership or any of its Subsidiaries to sellengage in or compete in any geographical area;
(ii) any Contract for Debt to which any of the Contributed Assets are bound;
(iii) any Contract for capital expenditures or the acquisition or construction of fixed assets requiring the payment of an amount in excess of $250,000;
(iv) any Contract relating to the acquisition or disposition of any assets or properties (whether by merger, transferconsolidation, pledge recapitalization, share exchange, sale of stock, sale of assets or otherwise, and whether through proceedings in bankruptcy or otherwise) entered into in the past five years requiring the payment of an amount in excess of $250,000;
(v) any Contract under which SPPR is lessor or lessee of any Real Property;
(vi) any Contract containing any preferential rights to purchase or similar rights relating to the Contributed Assets (other than the Omnibus Agreement);
(vii) any Contract the primary purpose of which is to require SPPR or Western to indemnify or otherwise dispose make whole any Person with an indemnification or make whole obligation having or reasonably expected to have a value in excess of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole$250,000;
(viii) relating to any other Contract (other than any Contract granting any Permits, servitudes, easements or evidencing indebtedness for borrowed moneyrights-of-way) materially affecting the ownership, debt securities, warrants use or other rights to acquire any debt securities, operation of the Company Contributed Assets, the loss of which could, individually or any Subsidiary of in the Companyaggregate, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)have a Material Adverse Effect;
(ix) any hedging, swap, derivative, or similar ContractContract with any Governmental Authority (other than Permits);
(x) that is a license any Contract (or group of related Contracts with a covenantsingle counterparty or, consent or other rights to Western’s Knowledge, Affiliated counterparties) not described in or to use Intellectual Propertyclause (i) granted by the Company or any Subsidiary through (ix), that as of the Company date hereof, is reasonably expected to Company Intellectual Property (A) on provide for revenues or commitments in an exclusive basis, (B) pursuant to which the Company or amount greater than $250,000 during any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;calendar year; and
(xi) that is a license any interest rate, commodity or currency protection agreement (or a covenantincluding any swaps, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basiscollars, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership caps or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictionshedging obligations);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of SPPR and Western has made available to the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) Partnership a correct and complete copy of the Company Disclosure Schedule, is referred to herein as a “each Material Contract.” . Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each Material Contract is legal, valid and binding on and enforceable against SPPR or its Affiliates, as the case may be, and to Western’s Knowledge, the counterparty thereto. Neither Each Material Contract is in full force and effect, and none of SPPR or its Affiliates, as the Company nor any Subsidiary of the Company hascase may be, andor, to the Knowledge of the CompanyWestern’s Knowledge, none of the other parties thereto haveany counterparty thereto, violated any provision of, is in breach or committed or failed to perform any act under, default thereunder and no event has occurred that upon receipt of notice or condition exists, which (with or without notice, lapse of time or both) both would constitute a any breach of or default under, the provisions of any Material Contractthereunder, except in each case for those violations, acts (such breaches or failures to act) and defaults whichas would not, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect. None of SPPR or its Affiliates has given or received from any third party any written notice of any action or intent to terminate or amend in any material respect any Material Contract.
Appears in 2 contracts
Sources: Contribution, Conveyance and Assumption Agreement (Northern Tier Energy LP), Contribution, Conveyance and Assumption Agreement
Material Contracts. (a) Except (i) as for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC DocumentsReports, (ii) for this Agreement and the other agreements entered into Contracts listed in connection with Subsections (i) through (xxi) of Section 3.16(a) of the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule, as of the date hereofOriginal Execution Date, neither the Company nor any Subsidiary none of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party to or bound by the following Contracts:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract relating to the formation, creation, operation, management or control of any Subsidiary of the Company or any other partnership, joint venture, strategic collaboration, global affiliation or business cooperation, limited liability company or similar arrangement;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business pursuant business) or advance to which (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any such loan, advance or investment for more than US$5,000,000;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries have material continuing obligationsof more than US$5,000,000;
(v) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000;
(vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances;
(vii) containing any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(Aviii) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a covenant fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(ix) any Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other provision limiting dispute with amount in controversy greater than US$5,000,000;
(x) any Contract involving a standstill or similar arrangement;
(xi) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any Subsidiary of the Company its Subsidiaries to compete or engage in any line of business or to compete with any Person in any geographic area, industry or line of business;
(xii) any Contract for the employment of any senior executive officer;
(xiii) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of the Original Merger Agreement, this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any customary employee non-solicitation payment in excess of US$5,000,000 to be made by the Company or no-hire clauses entered into any of its Subsidiaries in any calendar year or (B) the ordinary course value of businessthe outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year;
(xv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right pledging of first refusal or right of first offer or similar right that limits the ability share capital of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) issuance of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which guarantee by the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024Subsidiaries;
(xivxvi) that is any Contract providing for (A) a settlementlicense, conciliation covenant not to s▇▇ or similar Contract (x) with other right granted by any Governmental Authority entered into since February 1, 2021, (y) which would require Third Party under any Intellectual Property to the Company or any of its Subsidiaries Subsidiaries, (B) a license, covenant not to pay consideration of more than $1,000,000 after the date of this Agreement s▇▇ or (z) that subjects other right granted by the Company or any of its Subsidiaries to any material ongoing requirements or restrictions Third Party under any Intellectual Property, (other than ordinary course confidentiality requirements or restrictions);
(xvC) an indemnity of any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or relating to dispositionviolation of any Intellectual Property right, voting or dividends with respect (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any equity securities person by reason of the ownership, use, sale or disposition of Intellectual Property, in each case of clauses (A) through (D), other than agreements for off-the-shelf Software and such Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its Subsidiaries in the ordinary course of business;
(xvii) any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights;
(xviii) any Contract between or among the Company or any of its Subsidiaries; or, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year;
(xvixix) is each Control Agreement and any other any Contract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an affiliate “Operating Subsidiary”), (B) provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfers economic benefits from any Operating Subsidiary to any other Person Subsidiary of the Company;
(xx) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (including those that would be required to be disclosed under Item 404 if the Form 20-F were filed as of Regulation S-K promulgated under the Exchange ActOriginal Execution Date); or
(xxi) any other Contract which, other than any if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such Contract solely among described in clauses (i) to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, SEC Reports is referred to herein as a “Material Contract.” ”
(b) Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither : (i) each Material Contract is a legal, valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Company nor any Subsidiary Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company has, and, to the Knowledge knowledge of the Company, none of the other parties thereto haveno counterparty, violated any provision is or is alleged to be in breach or violation of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts ; (or failures to activ) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge knowledge of the Company, neither the Company nor no person intends to terminate any Subsidiary Material Contract; and (v) none of the Company has received written notice execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the foregoing. To the Knowledge rights of the Company, since February 1, 2021, no counterparty to any Group Company under any Material Contract Contract. The Company has (A) canceled furnished or otherwise terminatedmade available to Parent true and complete copies of all Material Contracts, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or including any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectamendments thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documentsset forth on Schedule 2.19(a), (ii) for this Agreement licenses of, and the other agreements entered into with respect to, the items referred to in connection with the transactions contemplated hereby Section 2.17 and (iii) for Company Employee PlansLeases, as of the date hereofto which no representations or warranties are made other than as set forth in Section 2.9, neither the Company nor any Subsidiary of the Company is not a party to or is bound by by, nor are any Contractof its assets affected by, any:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) note, debenture, bond, equipment trust, letter of Regulation S-K credit, indenture loan or other agreement relating to Indebtedness, lending or investing of money or to the Exchange Act)mortgaging or pledging of any of its assets;
(ii) that is Contract with the ten a Governmental Authority;
(10iii) largest customers guaranty of the Company and its Subsidiaries during the fiscal year ended January 31Indebtedness, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than endorsements made for collection in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contractindemnification or other reimbursement obligations in excess of $100,000;
(v) evidencing a capital expenditure Contract for which future the purchase of materials, supplies, goods or services that involves or would reasonably be expected to involve (A) annual payments are required in excess by the Company of $5,000,000100,000 or more or (B) aggregate payments by the Company, of $250,000 or more;
(vi) relating to the disposition or acquisition of Contracts which prohibit it from freely engaging in any business, equity, or all or substantially all of the assets of activity in any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationsgeographic region;
(vii) containing Contract (A) a covenant or other provision limiting in any material respect for the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee sale by the Company or of its Subsidiaries of the obligations of any Person (in each casematerials, excludingsupplies, for the avoidance of doubtgoods, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedgingservices, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent equipment or other rights in or to use Intellectual Property) granted assets, and that involves a specified annual minimum dollar sales amount by the Company of $100,000 or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basismore, or (B) pursuant to which the Company or any Subsidiary received licensing revenues for payments of more than $100,000 in the fiscal year ended January December 31, 2024 2008 or expects to receive payments of more than $100,000 in excess the years ending December 31, 2009 and December 31, 2010;
(viii) Contract that requires the Company to purchase its total requirements of $1,000,000any product or service from a third party or that contains "take or pay" provisions;
(ix) employment, consulting, termination or severance Contract, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) any such Contract that is otherwise material terminable at-will by the Company without liability to the Company and its Subsidiaries taken as a wholeCompany;
(x) partnership or joint venture Contract;
(xi) that is a license (distribution, dealer, representative or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholesales agency Contract;
(xii) Contract for the lease of personal property that is a provides for payments to or by the Company Real Property Lease with remaining obligations in excess any one case of $1,000,000100,000 or more annually or $500,000 or more over the term of the lease;
(xiii) that involves a material joint venture, profit sharing, partnership Contract for any capital expenditure or similar agreement from which the Company or leasehold improvement in any of its Subsidiaries recognized revenues one case in excess of $1,000,000 during 100,000 or in the fiscal year ended January 31, 2024aggregate greater than $250,000;
(xiv) Contract that is a settlement, conciliation relates to the acquisition or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any disposition of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements business (whether by merger, sale of stock, sale of assets or restrictions (other than ordinary course confidentiality requirements or restrictionsotherwise);
(xv) Collective Bargaining Agreement or other Contract with any stockholders’ agreementlabor organization, proxy, voting trust agreement union or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiariesassociation; or
(xvi) is with an affiliate any other Contracts not described above which involve the payment to or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among by the Company and its wholly-owned Subsidiariesof $100,000 or more in any twelve consecutive month period.
(b) Each Contract of the type described above in Section 4.15(aExcept as set forth on Schedule 2.19(b), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcyeach contract or commitment listed on Schedule 2.19(a) (the "Material Contracts") is valid, insolvency, moratorium binding and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and enforceable against the Company; (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or is not in material default under, the provisions of under any Material Contract, except in each case for those violationshas performed all material obligations under the Material Contracts required to be performed by it, acts and has not received any claim of default under any Material Contract; and (or failures to actiii) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company Seller has received written notice no knowledge of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty breach or anticipated breach by any other party to any Material Contract Contract.
(c) Seller has (A) canceled or otherwise terminated, or threatened in writing made available to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount Buyer true and complete copies of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Datameg Corp), Stock Purchase Agreement (Datameg Corp)
Material Contracts. (ai) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into set forth in connection with the transactions contemplated hereby and (iii) for Company Employee PlansSchedule 8(d), as of the date hereofhereof Seller, neither with respect to the Company nor any Subsidiary of the Company Business, is a not party to or is otherwise bound by any Contractor subject to:
1) any written employment, severance or sales representative contract which contains an obligation (iexcluding commissions) that is a “material to pay more than $100,000 per year;
2) any written consulting contract” (as such term is defined in Item 601(b)(10;
3) of Regulation S-K any real property lease or equipment lease which constitutes part of the Exchange Act)Business or the Assets;
(ii4) that is any Contract containing any covenant limiting the freedom of Seller, with the ten (10) largest customers respect of the Company and its Subsidiaries during Business or the fiscal year ended January 31operations of the Business, 2024 (as determined based on revenue received from such customers during such time period) (excluding to engage in any non-disclosure agreements, data processing agreements, purchase orders line of business or statements of work or invoices entered into compete with any Person in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)any geographic area in any material respect;
(iii5) that is with any Contract in effect on the ten (10) largest vendors date of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) this Agreement relating to the disposition or acquisition of any business, equitythe assets of, or all any interest in, any business enterprise which relates to the Business other than in the Ordinary Course of Business;
6) any offset agreement entered into in connection with an international sales transaction and relating to any contract that imposes on the Business an obligation to perform that will continue in effect on or substantially all of after the assets Closing Date;
7) any Contract of any Person for kind that (i) requires a payment by any party in excess of, or a series of payments which in the aggregate consideration exceed, $100,000, (ii) has a term, or requires the performance of any obligations by any party over a period, in excess of $5,000,000 by the Company one year, or (iii) involves any of its Subsidiaries outside director, officer or stockholder of the ordinary course of business Seller;
8) any Contract pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability Seller on behalf of the Company Business has made or any Subsidiary of the Company to compete will make loans or engage in any line of business advances, or to compete with any Person in any geographic area, other than any customary employee non-solicitation has or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” will have incurred debts or similar provisions, (C) become a right of first refusal guarantor or right of first offer surety or similar right that limits the ability of the Company or any of pledged its Subsidiaries to sell, transfer, pledge credit on or otherwise dispose become responsible with respect to any undertaking of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiariesanother Person, in each case, that is material in an amount over $100,000 (except for the negotiation or collection of negotiable instruments in transactions in the Ordinary Course of Business);
9) any indenture, loan agreement, note, mortgage, security agreement, lease of real property or personal property or other Contract relating to the Company borrowing of funds, an extension of credit or financing for which the Business is obligated; or
10) any Contract involving a partnership, joint venture or other cooperative undertaking.
ii) Except as disclosed in Schedule 8(d), each contract disclosed in Schedule 8(d) is a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its Subsidiariesterms (except as limited by applicable bankruptcy, taken as a whole;
(viii) insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or evidencing indebtedness for borrowed moneyaffecting creditors’ rights generally, debt securitiesincluding the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers), warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends except with respect to liquidated damages owed by Seller and any equity securities of the Company delays or circumstances in connection therewith, Seller is not in default and has not failed to perform any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may beobligation thereunder, and, to the Knowledge of Seller, there does not exist any event, condition or omission which would constitute a material breach or material default (whether by lapse of time or notice or both) by any other Person, which would give rise to any right of termination. Except as disclosed in Schedule 8(d), as of the Company, each date of this Agreement Seller has not received any written notification from any other Person party thereto, and (Bto any of the Contracts disclosed in Schedule 8(d) in full force and effect, except of a claim of default by Seller. Seller has previously made available to Buyer (i) as may be limited by bankruptcytrue, insolvencyaccurate and complete copies of each document set forth on Schedule 8(d) (collectively, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity the “Identified Contracts”) and (ii) a written description of each oral arrangement so listed on Schedule 8(d). Except as would notset forth on Schedule 8(d), individually or all such Identified Contracts and arrangements have been entered into by Seller in the aggregateOrdinary Course of Business. Except for sales of assets in the Ordinary Course of Business and this Agreement, reasonably be expected to have a Company Material Adverse Effect. Neither the Company neither Seller nor any Subsidiary of its Affiliates has any Contract or arrangement with respect to the sale or other disposition of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, Business or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectAssets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mastec Inc), Asset Purchase Agreement (Mastec Inc)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary Section 4.11 of the Company Disclosure Letter lists each of the following contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries is a party affecting the obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound by any Contract:(other than Government Contracts, which are addressed in Section 4.10):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of any contract or agreement, whether written or otherwise, for the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition sale of any business, equity, material personal property or all for the furnishing of services to or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside that involves future aggregate annual payments to or by the Company or any of its Subsidiaries of $1,000,000 or more (excluding those contracts and agreements terminable by the ordinary course Company or such Subsidiary upon 180 days’ notice or less without liability to the Company exceeding $500,000);
(ii) any contract, agreement or instrument relating to or evidencing capitalized lease obligations or other indebtedness of, for the benefit of, or payable to, the Company or any of business its Subsidiaries (or any guaranty of capital lease obligations or other indebtedness of or by the Company or any of its Subsidiaries) in the amount of $500,000 or more;
(iii) any contract or agreement pursuant to which any third party is authorized to use any material intellectual property rights owned by or exclusively licensed to the Company or any of its Subsidiaries;
(iv) any contract or agreement pursuant to which the Company or any of its Subsidiaries have is authorized to use any material continuing obligationsCompany Intellectual Property Rights;
(viiv) 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 of its Subsidiaries is a party;
(vi) any agreement (other than agreements containing (Aimmaterial or de minimis restrictions) a covenant that contains any non-compete or other provision limiting exclusivity provisions with respect to any line of business in which the Company or any of its Subsidiaries is currently engaged or geographic area with respect to the Company or any of its Subsidiaries, or that purports to restrict in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose conduct any line of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, business in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues is currently engaged or to compete with any Person or operate in excess of $1,000,000 during the fiscal year ended January 31, 2024any geographic area or location;
(xivvii) that is a settlementany material partnership, conciliation limited liability company agreement, joint venture or other similar Contract (x) agreement entered into with any Governmental Authority entered into since February 1, 2021, third party;
(yviii) any contract or agreement with respect to any acquisition or disposition of any person or business or material portion thereof pursuant to which would require the Company or any of its Subsidiaries has any continuing indemnification, “earn-out” or other contingent payment obligation;
(ix) any contract or agreement pursuant to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects which the Company or any of its Subsidiaries agrees to indemnify or hold harmless any material ongoing requirements director or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities executive officer of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities (other than the organizational documents of the Company or the Company’s Subsidiaries);
(x) any contract or agreement that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer, the Merger or any of its Subsidiariesthe other transactions contemplated by this Agreement; or
(xvixi) is any commitments and agreements to enter into any of the foregoing. Each such contract described in clauses (i) through (xi) above, together with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
each contract described in paragraph (b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedulebelow, is referred to herein as a “Material Contract.” Except for Material Contracts ”
(b) All the material contracts that are required to be filed as exhibits to the Company SEC Reports have expired been described or terminated by their terms, all filed as required.
(c) Each of the Material Contracts are (A) is a valid and binding on obligation of the Company (or the applicable Subsidiary Subsidiaries of the Company party thereto), and to the Company’s knowledge, as the case may beother parties thereto, enforceable against the Company and its Subsidiaries and, to the Knowledge of Company’s knowledge, the Company, each other party thereto, and (B) parties thereto in full force and effectaccordance with its terms, except (i) as enforceability may be limited by bankruptcybankruptcy laws, insolvency, moratorium and other similar Applicable Law laws affecting creditors’ rights generally and by general principles of equity affecting the availability of specific performance and other equitable remedies.
(iid) as Neither the Company nor any of its Subsidiaries is, nor to the Company’s knowledge is any other party, in breach, default or violation (and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, through the action or inaction of any third party that with notice or the lapse of time or both would notconstitute a breach, default or violation) of any term, condition or provision of any Contract, except for breaches, defaults or violations that have not had and would not reasonably be expected to have, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (United Industrial Corp /De/), Merger Agreement (Textron Inc)
Material Contracts. (a) Except (iSchedule 3.12(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansSeller Disclosure Letter sets forth, as of the date hereof, neither the Company nor any Subsidiary a list of all of the Company following Contracts that relate primarily to the Business or are necessary for the operation of the Business, in each case, to which a Seller or a Conveyed Entity is a party to party, or is bound by any Contract:
that has been entered into on behalf of the Business (i) collectively, together with each such Contract that is entered into after the date of this Agreement, the “Material Contracts”; and each a “material contract” Material Contract”), materially correct and complete copies of which (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, other than purchase orders or statements of work or invoices for Business Products entered into in the ordinary course of businessthe Business) have been made available to Purchaser:
(i) each equipment lease or other lease of personal property which entails annual rental payments in excess of $250,000 per annum or $500,000 in the aggregate;
(ii) each Contract for goods and/or services (including any intercompany Contracts) by and between any of the Sellers and/or the Conveyed Entities and/or any of their Affiliates (other than the Business) and/or any of the officers, directors or employees of either Seller or the Conveyed Entities and/or any of their Affiliates (other than the Business), on the one hand, and the Business, on the other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)hand;
(iii) that is with the ten each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee (10excluding items set forth in Schedule 3.15(b) largest vendors of the Company and its Subsidiaries during Seller Disclosure Letter) in respect of Indebtedness of the fiscal year ended January 31, 2024 (as determined based on cost Conveyed Entities or the Business in excess of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)$250,000;
(iv) each customer, distribution, reseller or sales representative Contract expected to result in payment to the applicable Conveyed Entity or any other Person on behalf of the Business in excess of $1,000,000 per annum or that is a Government Contracthave resulted in such payments in excess of $2,000,000 in the aggregate over the last three years;
(v) evidencing each Contract with a capital expenditure for which future payments are required Governmental Authority expected to result in payment to a Conveyed Entity in excess of $5,000,000100,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all each Contract with vendors (including OEMs) of the assets of any Person for aggregate consideration Business expected to result in payment by the applicable Conveyed Entity in excess of $5,000,000 by 1,000,000 per annum or that have resulted in such payments in excess of $2,000,000 in the Company or any of its Subsidiaries outside of aggregate over the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationslast three years;
(vii) containing each Contract relating to capital expenditures and involving similar future payments in excess of $250,000 individually or $500,000 in the aggregate;
(Aviii) a covenant each Contract relating to the disposition of material assets of the Business or other provision limiting the acquisition or disposition of any assets or any interest in any material respect Person or business enterprise;
(ix) each Contract limiting the ability of any Conveyed Entity or the Company or any Subsidiary of the Company to compete or engage in any line of business or Business to compete with any Person in Person;
(x) each material joint venture Contract;
(xi) each Intellectual Property License;
(xii) each employment Contract, consulting Contract and severance agreement with any geographic areadirector, other than any customary officer or employee non-solicitation of either Seller or no-hire clauses entered into in its Affiliates, Tyco or its Affiliates or the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its SubsidiariesConveyed Entities, in each case, that engaged primarily in the Business, which is material likely to the Company and its Subsidiaries, taken as a whole;
(viii) relating to involve payments by or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, on behalf of the Company Seller or any Subsidiary its Affiliates, Tyco or its Affiliates or the Conveyed Entities in excess of the Company$150,000 per year, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property including Contracts (A) on an exclusive basisto employ or terminate executive officers or other key personnel (including key engineering staff), (B) with such present or former officers or directors pursuant to which the Company Conveyed Entities or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or Business has current Liabilities or (C) that is will result in the payment by, or the creation of any Liability to pay on behalf of the Conveyed Entities, the Business or the Purchaser any severance, termination, “golden parachute,” or other similar payments to any such present or former employees following termination of employment or otherwise material as a result of the consummation of the transactions contemplated by Transaction Documents, provided that the information relating to the Company and its Subsidiaries taken foregoing shall be as a whole;
(xi) that is a license (or a covenant, consent or other rights of the date specified in or to use Intellectual PropertySchedule 3.12(a) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000Seller Disclosure Letter;
(xiii) that involves a material joint venture, profit sharing, partnership each collective bargaining Contract or similar agreement from which the Company Contract, including any Contract with any union, works council or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024similar labor entity;
(xiv) that is a settlement, conciliation each Contract of indemnification or similar Contract hold harmless agreement (x) including with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries respect to any material ongoing requirements director, officer or restrictions (other than ordinary course confidentiality requirements employee of either Seller or restrictionsits Affiliates, Tyco or its Affiliate or the Conveyed Entities, in each case, engaged primarily in the Business);
(xv) each power of attorney granted by any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities Conveyed Entity that is effective and outstanding as of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiariesdate hereof; orand
(xvi) is with an affiliate or each other Person that Contract, the loss of which would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiarieshave a Material Adverse Effect.
(b) Each Contract of the type described above in Section 4.15(a), whether or not Except as set forth in Section 4.15(aon Schedule 3.12(a) of the Company Seller Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their termsLetter, all notices, approvals and consents that were agreed by the parties to the Tyco Agreement to be given or obtained pursuant to that agreement have been properly given or obtained as required by each Material Contract in order to validly assign, transfer or convey each such Contract to Sellers or the Conveyed Entities. Except as set forth on Schedule 3.12(a) of the Seller Disclosure Letter, each Material Contracts are (A) Contract is in full force and effect and is a valid and binding on the Company or the applicable Subsidiary agreement of each of the CompanyConveyed Entities (or, as applicable, the case may be, Affiliate of the Conveyed Entities party thereto) and, to the Knowledge of the CompanySellers, each any other party theretoto any such Contract; and there exists no breach, and (B) in full force and effectviolation, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles default or event of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which default (with or without notice, lapse of time or both) would constitute by the applicable Seller or a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021Conveyed Entity or, to the Knowledge of the CompanySellers, neither the Company nor any Subsidiary of the Company has received written notice other party to any such Contract, with respect to any term or provision of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other thanContract, in each case, as which would not reasonably be expected to have a Material Adverse Effect.
(c) There are no warranty claims or other uninsured claims pending or, to the Knowledge of Sellers, threatened against any of the Sellers, the Conveyed Entities or the Business under any Contracts which might involve a material monetary Liability which is not reserved against in the Balance Sheet.
Appears in 2 contracts
Sources: Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.), Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Material Contracts. (a) Except (i) as filed as exhibits to Section 4.16 of the Company SEC DocumentsDisclosure Schedules sets forth a true, (ii) for this Agreement correct and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planscomplete list, as of the date hereofof this Agreement, neither of the following Contracts (but not including any Lease Agreements) to which the Company nor or any Subsidiary of the Company Subsidiaries is a party or by which any of the Company or any of the Company Subsidiaries’ assets or properties are bound and under which the Company or any Company Subsidiary has ongoing obligations or the ability to or is bound by enforce rights thereunder (collectively, and together with any Contract:
(i) Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
, but excluding those material contracts described in clause (iiiii) that thereof) and is with the ten (10) largest customers not otherwise set forth on Section 4.16 of the Company and Disclosure Schedules, the “Material Contracts”):
(i) any Contract in excess of $50,000 per annum that requires any Person to purchase its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received total requirements of any product or service from such customers during such time period) (any other Person or contains “take or pay” or similar provisions but excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices subscription arrangements with suppliers that are entered into in the ordinary course of business, and other similar Contracts business consistent with past practice;
(ii) any Contract that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)contains a “most-favored-nation” clause;
(iii) any Contract that is with limits or purports to limit (or that following the ten (10consummation of the Offer or Merger, could materially limit) largest vendors the ability of any the Company or any of the Company and Subsidiaries or Parent or any of its Subsidiaries Affiliates to (A) compete in any line of business, with any Person, in any geographic area or during any period of time, including by limiting the fiscal year ended January 31ability to sell any particular services or products to any Persons, 2024 or (as determined based on cost of goods and services paid B) solicit any customers or individuals for employment;
(iv) any Contract requiring or otherwise relating to such vendors any future capital expenditures by the Company during such time periodor any of the Company Subsidiaries in excess of $50,000 individually or $250,000 in the aggregate;
(v) any Contract relating to the creation, incurrence, assumption or guarantee of any Indebtedness in excess of $100,000 individually, other than any Contract for intercompany indebtedness for borrowed money owing by the Company to any wholly-owned Company Subsidiary or any wholly-owned Subsidiary to the Company or another wholly-owned Company Subsidiary;
(vi) any Contract that provides for indemnification or assumption of Liability without limit as to aggregate amount but excluding any Contract with indemnification provisions for the indemnification of customers or suppliers that are consistent in all material respects with any Top Contract that was Made Available to Parent;
(vii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding any non-disclosure exclusive software licenses granted to customers, resellers and original equipment manufacturers in the ordinary course of business;
(viii) any Contract that provides for the establishment or operation of any joint venture, partnership, joint development, strategic alliance or similar arrangement;
(ix) any Contract to which a (A) Governmental Authority is a party, (B) Major Supplier is a party where the aggregate expenditures under all Contracts with such Major Supplier are in excess of $1,000,000 over the period between January 1, 2013 and October 31, 2014, (C) Major Customer is a party where the aggregate revenues under all Contracts with such Major Customer are in excess of $2,000,000 over the combined two-year period ended December 31, 2013, (D) Major Reseller is a party or (E) Major OEM is a party (each such Contract, a “Top Contract”);
(x) any Contract involving any resolution or settlement of any actual or threatened Proceeding with a value in excess of $25,000 individually or that provides for any injunctive or other non-monetary relief;
(xi) any hedging, swap, derivative or similar Contract;
(xii) excluding Contracts set forth in Section 4.16(a)(x) of the Company Disclosure Schedules, any Contract under which (A) the Company or any of the Company Subsidiaries has licensed or provided any Company Owned IP to a third party, including agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions (except for non-exclusive licenses granted to Company’s customers in the ordinary course of business that are limited in all material respects to the respective customer’s use or receipt of Company products or services and non-exclusive licenses to contractors and consultants providing services to the Company where the license grant is limited to enabling the respective contractor or consultant to provide services to the Company) (“Company IP Licenses”) and/or (B) pursuant to which Intellectual Property are licensed or otherwise made available (including through agreements containing releases, immunities from suit, covenants not to ▇▇▇ or non-assertion provisions) to the Company or any of the Company Subsidiaries by any Person (except for Shrink Wrap Licenses);
(xiii) any labor, collective bargaining agreement or similar agreements;
(xiv) any insurance policies required to be set forth in Section 4.21 of the Company Disclosure Schedules;
(xv) any Contract with any director, data processing agreementsofficer or affiliate of the Company or any of the Company Subsidiaries; and
(xvi) any Contract (not listed in clauses (i) through (xv) above or in Section 4.24(b) of the Company Disclosure Schedules) pursuant to which the Company and/or any of the Company Subsidiaries may be entitled to receive or obligated to pay more than $200,000 in any calendar year but excluding (A) any customers, purchase orders resellers, original equipment manufacturers, distributors or statements of work or invoices suppliers agreement entered into in the ordinary course of businessbusiness consistent with past practice and (B) any offer letter or employment, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid severance or payable by the Company);retention agreement.
(ivb) that The Company has Made Available to Parent true, correct and complete copies of each Material Contract (including all modifications, amendments, supplements, annexes and schedules thereto and written waivers thereunder). Each Material Contract is in full force and effect and is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by valid and binding agreement enforceable against the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, party thereto and, to the Knowledge of the Company’s Knowledge, each any other party thereto, and (B) thereto in full force and effectaccordance with its terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notequity. As of the date of this Agreement, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither none of the Company nor any Subsidiary of the Company hasSubsidiaries party to, andnor, to the Knowledge Company’s Knowledge, any other party to any Material Contract is in material breach of or material default under, or has provided or received any written notice of any intention to terminate or seek renegotiation of, any Material Contract. To the Company’s Knowledge, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition existscircumstance has occurred that, which (with or without notice, notice or lapse of time or both, would (i) would constitute a material breach of or material event of default underby the Company, (ii) result in a right of termination for the provisions counterparty, (iii) cause or permit the acceleration of, or other material changes to, any material right of the counterparty or obligation of the Company or (iv) result in the loss of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge material benefit of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a under any Material Adverse EffectContract.
Appears in 2 contracts
Sources: Merger Agreement (Open Text Corp), Merger Agreement (Actuate Corp)
Material Contracts. (a) Except (i) as This Agreement, the Company Benefit Plans, the Contracts filed with the SEC as exhibits to the Company Filed SEC Documents, and those Contracts listed in Section 4.19 of the Company Disclosure Letter (iisuch contracts, collectively, the “Company Material Contracts”) for this Agreement and constitute all of each of the other agreements entered into in connection with following Contracts, whether written or oral (without duplication), that the transactions contemplated hereby and (iii) for Company Employee Plans, or any of its Subsidiaries is a party to or bound by as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
: (i) that is a any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
SEC) of the Company; (ii) that is any employment, severance or consulting Contract or offer letter with the ten (10) largest customers an employee or former employee, officer or director of the Company and its Subsidiaries during or any Subsidiary of the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements Company that will require the payment of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to amounts by the Company or its Subsidiaries);
any Subsidiary of the Company, as applicable, after the date hereof in excess of $200,000 per annum, other than those employment agreements, offer letters and/or employment contracts that are terminable at-will by the Company or a Subsidiary, as applicable, on no more than one month’s notice or the minimum required notice period under applicable law; (iii) that is any collective bargaining Contract, or any other agreement or work rule or practice with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31any labor union, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders labor organization or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
works council; (iv) that is a Government Contract;
(v) evidencing a any Contract for capital expenditure for expenditures or the acquisition or construction of fixed assets which requires aggregate future payments are required in excess of $5,000,000;
; (viv) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) Contract containing (A) a covenant or other provision limiting in any material respect the ability covenants of the Company or any Subsidiary of the Company to compete indemnify or engage hold harmless another Person or group of Persons, unless such indemnification or hold harmless obligation to such Person, or group of Persons, as the case may be, would not reasonably be expected to exceed a maximum of $2,000,000; (vi) any Contract that limits or purports to limit, in any line of business or to compete with any Person in any geographic areamaterial respect, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries or Affiliates (including, following the Merger, Parent or any of its Subsidiaries or Affiliates, including the Surviving Corporation) to sellengage in any line of business or compete with or obtain products, transfercommodities or services in any geographic area; (vii) any license, pledge royalty Contract or other Contract with respect to Intellectual Property which, pursuant to the terms thereof, requires payments by the Company or any Subsidiary of the Company in excess of $500,000 per annum; (viii) any Contract pursuant to which the Company or any Subsidiary of the Company has entered into a partnership or joint venture with any other Person; (ix) any indenture, mortgage, loan, guarantee or credit Contract under which the Company or any Subsidiary of the Company has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise dispose or any guaranteed indebtedness for money borrowed by others, in each case, for or guaranteeing an amount in excess of assets$5,000,000, rights other than any such indebtedness between the Company (whether as creditor or properties debtor) and any wholly owned Subsidiary of the Company or between any wholly owned Subsidiaries of the Company; (x) any Contract under which the Company or any Subsidiary of the Company is (A) a lessee of real property, (B) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, (C) a lessor of real property, or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation lessor of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of tangible personal property owned by the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance case which requires annual payments in excess of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
$500,000; (ixxi) any hedging, swap, derivative, or similar Contract;
(x) that is Contract other than a license (or a covenant, consent or other rights in or to use Intellectual Property) granted Company Benefit Plan which requires payments by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, 500,000 per annum containing “change of control” or similar provisions; (xii) all sole source or material limited source supply agreements; (xiii) any Contract (other than non-exclusive licenses granted to customers Contracts of the type described in the ordinary course of business, and/or subclauses (Ci) through (xii) above) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (involves aggregate payments by or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company 500,000 per annum; and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves any Contract the termination or breach of which, or the failure to obtain consent in connection with the transactions contemplated hereby in respect of which, would have or reasonably be expected to have, individually or in the aggregate, a material joint venture, profit sharing, partnership Company Material Adverse Effect. The Company has delivered or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries made available to pay consideration of more than $1,000,000 after Parent prior to the date of this Agreement or (z) that subjects the complete and correct copies of each Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities Material Contract listed in Section 4.19 of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesDisclosure Letter.
(b) (i) Each Company Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary and any of the Company, as the case may be, and, its Subsidiaries to the Knowledge of the Company, each other extent such Subsidiary is a party thereto, as applicable, and (B) in full force and effect, except (i) as may where the failure to be limited by bankruptcyvalid, insolvencybinding and in full force and effect, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect. Neither , (ii) the Company nor any Subsidiary and each of the its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violationswhere such noncompliance, acts (or failures to act) and defaults which, either individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect andEffect, as of February 1, 2021, to the Knowledge of the Company, and (iii) neither the Company nor any Subsidiary of the Company its Subsidiaries has received written notice of any the existence of any, and to the knowledge of the foregoing. To Company there exits no, event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the Knowledge part of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that its Subsidiaries under any such counterparty presently engages Company Material Contract, except where such default, either individually or in or presently conducts with the Company and its Subsidiaries other thanaggregate, in each case, as would not have or reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Material Contracts. (a) Except (i) as filed as exhibits Section 3(l)(i) of the Disclosure Schedule sets forth a list of all Material Contracts (x) by which Uniloy Italy is bound, (y) that is exclusively related to the Company SEC Documentsbusiness, or (iiz) for that is otherwise an Assigned Contract. For purposes of this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansAgreement, as each of the date hereof, neither the Company nor any Subsidiary of the Company is following shall be deemed to constitute a party to or is bound by any “Material Contract”:
(iA) that is a “any contract relating to, and evidence of, indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset) in excess of Twenty Five Thousand Dollars ($25,000) or relating to any Lien on any material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K asset or property of the Exchange ActBusiness other than Permitted Liens;
(B) any contract pursuant to which a Seller Company has agreed to provide funds to or make any loan, capital contribution or other investment in, or assume, guarantee or act as a surety with respect to any Liability of, any Person;
(C) any contract that purports to limit, curtail or restrict the ability of a Seller Company in any material respect to compete in any geographic area or line of business, or to make sales to any Person in any manner;
(D) any executory contract for the sale or purchase of any real property, or for the sale or purchase of any goods or services in an amount in excess of One Hundred Thousand Dollars ($100,000);
(iiE) that is any employment, consulting or services contract with any employee or other Person requiring the ten payment of total annual compensation in excess of One Hundred Thousand Dollars (10$100,000) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)per annum;
(iiiF) that is with the ten any reselling, sales, marketing, merchandising or distribution contract requiring payments in excess of One Hundred Thousand Dollars (10$100,000) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)per annum;
(ivG) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) any joint venture or partnership, joint development, merger, asset or share purchase or divestiture contract relating to the disposition Business with currently outstanding rights or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(viiH) containing any contract relating to settlement of any administrative or judicial Proceedings since the date two years prior to the date hereof;
(AI) any contract with a covenant Governmental Body with currently outstanding rights or obligations in excess of One Hundred Thousand Dollars ($100,000) per annum;
(J) any contract relating to capital expenditures in excess of One Hundred Thousand Dollars ($100,000) or the acquisition or disposition of (x) any business (whether by stock or asset purchase, merger or otherwise) or (y) any other asset not in the Ordinary Course of Business entered into since the date two years prior to the date hereof;
(K) any Seller Companies IP Agreements;
(L) any Lease;
(M) any collective bargaining agreement or other provision limiting contract with a labor union, works council or other employee representative;
(N) any contract with a customer or supplier that involves the payment of money in any material respect the ability excess of one and five tenths percent (1.5%) of the Company or any Subsidiary Business’s net revenue for either of the Company to compete fiscal years ending December 31, 2017 or engage in December 31, 2018;
(O) any line contract that includes a power of business attorney or to compete with proxy, whether limited or general, revocable or irrevocable;
(P) any Person in contract that contains any geographic areapreferential pricing provisions, other than any customary employee non-solicitation such as “most favored customer” or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” provisions or similar provisions, or equivalent price or term protection clauses;
(CQ) a right of first refusal or right of first offer any contract that contains any earn-out or similar right that limits the ability provision;
(R) any lease or similar agreement under which any of the Company Seller Companies is lessee of, or holds or uses, any of its Subsidiaries to sellmachinery, transfer, pledge equipment or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” vehicle or other contingenttangible personal property;
(S) any contract requiring the future purchase of supplies, deferred equipment or fixed payment obligation materials by a Seller Company that has an aggregate continuing liability in excess of One Hundred Thousand Dollars ($100,000) per year;
(T) the Company and its Subsidiaries, in each case, India Transferred Contracts; and
(U) any other contract that is material to the Company and its Subsidiaries, Business taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(bii) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all Seller has made available complete and correct copies of the Material Contracts are (A) to Buyer, including all modifications, amendments and supplements thereto. Each of the Material Contracts constitutes the valid and legally binding on the Company or obligation of the applicable Subsidiary of the Company, as the case may be, Seller Company and, to the Knowledge of the CompanySeller’s Knowledge, each other party thereto, enforceable in accordance with its terms (subject to any applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity, regardless of whether such enforceability is considered at equity or at Law), and (B) is in full force and effect, except (i. Except as set forth on Section 3(l)(ii) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Disclosure Schedule, there is no Breach or default under any Material Contract either by the applicable Seller Company has, andor, to Seller’s Knowledge, by any other party thereto, no event has occurred that with the Knowledge giving of notice, the Company, none lapse of the other parties thereto have, violated any provision oftime, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) both would constitute a breach of Breach or default under, thereunder by the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a applicable Seller Company Material Adverse Effect and, as of February 1, 2021or, to Seller’s Knowledge, any other party, and the Knowledge of the Company, neither the Company nor any Subsidiary of the applicable Seller Company has not received any written notice of a claim of any of the foregoingsuch Breach or default. To the Knowledge of the Company, since February 1, 2021, no counterparty No party to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with repudiated any provision of such Material Contract. Upon the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, consummation of the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other thanContemplated Transactions and, in respect of the Mexico Deferred Business and the India Deferred Business, upon consummation of the Mexico Deferred Closing and the India Deferred Closing, each caseof the Material Contracts will continue to be legal, as would not reasonably valid binding and enforceable in accordance with its terms and will continue to be expected in full force and effect without penalty (subject to have a Material Adverse Effectany applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity, regardless of whether such enforceability is considered at equity or at Law).
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Milacron Holdings Corp.)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as As of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractby:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31any limited liability company agreement, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreementspartnership, data processing agreements, purchase orders joint venture or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary agreement or arrangement with respect to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability business of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a wholly-owned Subsidiary of the Company;
(ii) any Contract relating to or evidencing Indebtedness in an amount in excess of $500,000 individually, or $3,000,000 in the aggregate, other than equipment leases entered into in the ordinary course of business that do not exceed $15,000,000 in the aggregate;
(iii) any Contract filed or required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Exchange Act or disclosed or required to be disclosed by the Company in a Current Report on Form 8-K, other than Benefit Plans disclosed in Section 5.9 of the Company Disclosure Letter;
(iv) any Contract not terminable on less than ninety (90) days’ notice that purports to limit the right of the Company or its Subsidiaries or any Affiliate of the Company to engage or compete in any material line of business;
(v) any Contract entered into after February 28, 2011, or not yet consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of all or substantially all the assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(vi) any acquisition Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations that could reasonably be expected to exceed $500,000;
(vii) any Contract (A) pursuant to which the Company or its Subsidiaries sources all or a majority of a particular product that is material to the business of the Company and its Subsidiaries, taken as a whole, from one (1) Person and/or such Person’s Affiliates (i.e., a “sole-source” supply Contract) or (B) pursuant to which the Company or its Subsidiaries grants any one (1) Person and/or such Person’s Affiliates the exclusive right to be the sole acquiror of a Company Product;
(viii) relating to or evidencing indebtedness for borrowed moneyany Contract that is a material settlement, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, conciliation or similar Contract;
agreement (xA) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or with any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basisGovernmental Entity, (B) pursuant to which the Company or any Subsidiary received licensing revenues for of its Subsidiaries is obligated after the fiscal year ended January 31, 2024 date of this Agreement to pay consideration in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or or (C) that is would otherwise material to materially limit the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities operation of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; (or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each Parent or any of its other party thereto, Affiliates from and (B) in full force and effect, except (iafter the Merger Closing) as may be limited currently operated;
(ix) any Contract that grants an exclusive license of any material Intellectual Property owned by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and the Company or any Subsidiary to another Person;
(iix) as would notany Contract that, individually or in the aggregate, reasonably be expected would prevent, materially delay or materially impede the Company’s ability to have a Company Material Adverse Effect. Neither consummate the Company nor transactions contemplated by this Agreement; or
(xi) any Subsidiary Contracts containing minimum purchase conditions in excess of $100,000 or requirements or other terms that restrict or limit the purchasing relationships of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision ofor its Subsidiaries, or committed any customer, licensee or failed lessee thereof (the Contracts described in clauses (i) - (xi), together with all exhibits, annexes, addenda and schedules to perform any act undersuch Contracts, and no event being the “Material Contracts”).
(b) Except as prohibited by applicable Law or condition existsapplicable contractual restrictions, which (with or without notice, lapse a copy of time or both) would constitute a breach of or default under, the provisions of any each Material Contract, except in each case for those violations, acts (or failures Contract that is not publicly available has previously been made available to act) and defaults which, individually or in the aggregate, Parent. Except as would not reasonably be expected to have a Company Material Adverse Effect and(i) each Material Contract is a valid and binding agreement of the Company or one of its Subsidiaries, as the case may be, and is in full force and effect and enforceable against the Company or such Subsidiary in accordance with its terms, subject to the Bankruptcy and Equity Exception, (ii) neither the Company nor any of February 1, 2021its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or breach in any material respect under the terms of any Material Contract, nor has the Company or any of its Subsidiaries received Knowledge of the existence of any event or condition which constitutes, or after notice or lapse of time or both, will constitute, a material default on the part of the Company or any Subsidiaries under any Material Contract, (iii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed in all material respects all obligations required to be performed by it under each Material Contract, and (iv) neither the Company nor any Subsidiary of the Company has received any written notice of any the termination or cancellation of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing prior to cancel or otherwise to terminate, the end of its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectterm.
Appears in 1 contract
Sources: Merger Agreement (Immucor Inc)
Material Contracts. (a) Except (iSection 4.10(a) as filed as exhibits to of the Company SEC DocumentsDisclosure Schedule contains a complete and accurate list or description of all written or oral contracts, agreements, evidences of indebtedness, guarantees, obligations, grants, leases and executory commitments (ii“Contracts”) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, effect as of the date hereof, neither Execution Date to which the Company nor or any Subsidiary of the Company its Subsidiaries is a party to party, or is bound by which any Contractof their respective assets or properties are bound, which:
(i) require the Company or any of its Subsidiaries to pay or entitle any of them to receive in excess of $1,000,000 and that is a “material contract” are not otherwise required to be disclosed pursuant to clauses (as such term is defined in Item 601(b)(10ii) through (xii) of Regulation S-K of the Exchange Act)this Section 4.10;
(ii) that is with require the ten Company or any of its Subsidiaries to pay at least $500,000 over their remaining term and are not terminable by the Company within ninety (1090) largest customers days from the Execution Date without penalty or further obligation on the part of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 Company;
(as determined iii) involve payments based on revenue received from such profits or revenues of the Company;
(iv) create or ▇▇▇▇▇ ▇ ▇▇▇▇ (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than contracts with customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices and suppliers entered into in the ordinary course of business, and business consistent with past practice;
(v) relate to the voting or transfer of Company Stock or other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to equity securities of the Company or its Subsidiaries);
(iii) that is with , the ten (10) largest vendors registration of any Company Stock or other equity securities of the Company and or its Subsidiaries during under the fiscal year ended January 31, 2024 (as determined based on cost Securities Act or that grant any redemption or preemptive rights with respect to Company Stock or other equity securities of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000its Subsidiaries;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by obligate the Company or any of its Subsidiaries outside to, directly or indirectly, make a capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than extensions of credit in the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationsconsistent with past practice);
(vii) containing involve a joint venture, partnership, strategic partnership or similar arrangement;
(viii) were entered into in connection with the settlement or other resolution of any Action that have any continuing material obligations, liabilities or restrictions on the Company or any of its Subsidiaries;
(ix) purport to prohibit, restrict or limit (A) a covenant or other provision limiting the operation of the Business in any material respect geographical area, (B) any acquisition or sale (other than customary anti-assignment and anti-export provisions) of property (tangible or intangible) by the ability Company or any Subsidiary or (C) the freedom of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person;
(x) involve radio spectrum, satellite capacity, satellite coordination or similar arrangement;
(xi) relate to the operation of a material portion of the Company Network; or
(xii) provide for indemnification of any Person in with respect to material liabilities relating to any geographic areacurrent or former business of the Company, any of its Subsidiaries or any predecessor Person other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability indemnification obligations of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material pursuant to the Company and its Subsidiaries, taken as provisions of a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee contract entered into by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends business consistent with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariespast practice.
(b) Each The Company has delivered to Parent, or otherwise made available for inspection by Parent, a correct and complete copy of each Contract listed in Section 4.10(a) of the type described above in Section 4.15(aCompany Disclosure Schedule (collectively, the “Material Contracts”), whether or not . Except as set forth in Section 4.15(a4.10(b) of the Company Disclosure Schedule, is referred to herein as a “and except for any Material Contract.” Except for Material Contracts Contract that have expired or terminated by their terms, all of the Material Contracts are (A) is terminated by the Company with the prior written consent of Parent in accordance with Section 6.2(b)(ii)(H), (B) expires in accordance with its terms after the Execution Date and on or before the Closing Date, (C) is terminated by the other party thereto in accordance with the terms of such Material Contract, other than due to a breach or default by the Company or its Subsidiaries or (D) is a Material Contract with a supplier named in Section 4.24 of the Company Disclosure Schedule, (i) each Material Contract is a valid and binding on obligation of each of the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other and its Subsidiaries that is a party thereto, thereto and (B) is in full force and effect, except (i) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Applicable Law Laws now or hereafter in effect relating to or affecting creditors’ the rights and remedies of creditors generally and by subject to general principles of equity and (whether considered in a proceeding at law or in equity), (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary and/or its Subsidiaries, as applicable, have performed in all material respects all material obligations required to be performed by them under the Material Contracts, and (iii) the Company and/or its Subsidiaries are (with or without notice or lapse of time, or both) not in material breach or default thereunder. As of the Execution Date, (i) each Material Contract with a supplier named in Section 4.24 of the Company has, and, to the Knowledge Disclosure Schedule (i) is a valid and binding obligation of each of the Company and its Subsidiaries that is a party thereto and is in full force and effect, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting the rights and remedies of creditors generally and subject to general principles of equity (whether considered in a proceeding at law or in equity), (ii) the Company and/or its Subsidiaries, as applicable, have performed in all material respects all material obligations required to be performed by them under such Material Contracts, and (iii) the Company and/or its Subsidiaries are (with or without notice or lapse of time, or both) not in material breach or default thereunder. To the Company’s Knowledge, none each Material Contract is a valid and binding obligation of the other parties thereto have, violated any provision of, or committed or failed to perform any act underthereto, and no event or condition exists, which other party to any Material Contract is (with or without notice, notice or lapse of time time, or both) would constitute a in material breach of or default under, under the provisions terms of any such Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectmaterially impact the Business.
(c) Neither the Company nor any of its Subsidiaries has entered into any Contract which by its terms would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Merger Agreement and the other Transaction Documents.
Appears in 1 contract
Sources: Merger Agreement (Viasat Inc)
Material Contracts. (a) Except (i) as filed as exhibits to Section 4.17 of the Company SEC Documents, (ii) for this Agreement Seller Disclosure Letter sets forth an accurate and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, complete list as of the date hereof, neither the Company nor any Subsidiary hereof of the following Contracts to which any Company or one of their respective Subsidiaries is a party or by which any of them are bound (each such Contract required to or is bound by any be set forth in such section of the Seller Disclosure Letter, a “Material Contract:”):
(i) all Contracts that is a “material contract” (as such term is defined contain restrictions with respect to payment of dividends or any other distribution in Item 601(b)(10) of Regulation S-K respect of the Exchange Act)membership interests, capital stock or other equity interests of the Companies or any of their respective Subsidiaries;
(ii) that is with the ten all Contracts relating to capital expenditures or other purchases of material, supplies, equipment or other assets or properties or services (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, other than purchase orders for inventory or statements of work or invoices entered into supplies in the ordinary course of business) in excess of Twenty-Five Thousand Dollars ($25,000) individually, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to One Hundred Thousand Dollars ($100,000) in the Company or its Subsidiaries)aggregate;
(iii) that is with the ten all Contracts involving a loan (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than accounts receivable owing from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment advances to the employees of any Company and any of its Subsidiaries extended in the ordinary course of business), and other similar Contracts that are ancillary or investment in, any Person or any Contract relating to Contracts pursuant to which cost the making of goods and services is paid any such loan, advance or payable by the Company)investment;
(iv) that is all Contracts involving Indebtedness of either Seller or any of its respective Subsidiaries or granting or evidencing a Government ContractLien on any property or asset of such Seller or any of its Subsidiaries, other than a Permitted Lien;
(v) evidencing a capital expenditure for all Contracts under which future payments are required in excess any Person (other than Casella) has directly or indirectly guaranteed Indebtedness of $5,000,000Casella or any of its Subsidiaries;
(vi) relating to any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(vii) all Contracts limiting the disposition or acquisition ability of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company Casella or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person or in any geographic geographical area, ;
(viii) all Contracts (other than this Agreement and any customary employee nonagreement or instrument entered into pursuant to this Agreement) with (A) either Seller or any Affiliate of such Seller or (B) any current or former officer or director of either Seller or any of its Subsidiaries;
(ix) all Contracts (including letters of intent) (A) involving the future disposition or acquisition of assets or properties involving consideration of more than One Hundred Thousand Dollars ($100,000), individually or in the aggregate, or any merger, consolidation or similar business combination transaction, whether or not enforceable, or (B) relating to the acquisition by either Seller or any of its Subsidiaries of any operating business or the capital stock or other equity interests of any other Person pursuant to which either Seller or any of its Subsidiaries has continuing obligations as of the date hereof;
(x) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-solicitation marketing, co-promotion, co-packaging, joint development or no-hire clauses similar arrangement;
(xi) all Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute;
(xii) all Contracts not entered into in the ordinary course of businessbusiness and involving a confidentiality, standstill or similar arrangement;
(xiii) all collective bargaining agreements or other agreements with any labor union;
(xiv) all Contracts (A) for the employment of any officer, individual employee or other Person on a full-time or consulting basis who cannot be dismissed immediately without notice and without liability or obligation of any kind whatsoever in excess of One Hundred Thousand Dollars ($100,000) and (B) “most favored nation”Contracts requiring the severance payments or payments upon a change-in-control in excess of One Hundred Thousand Dollars ($100,000) annually;
(xv) all Government Contracts involving aggregate payments in any twelve (12) month period beginning on or after January 1, “exclusivity” 2008 equal to or similar provisionsgreater than One Hundred Thousand Dollars ($100,000);
(xvi) all customer Contracts other than Government Contracts involving gross revenue in any twelve (12) month period beginning on or after January 1, 2008 equal to or greater than One Hundred Thousand Dollars (C$100,000);
(xvii) all Contracts that involve the performance of services for, or delivery of goods or materials to, a Seller or any of its Subsidiaries during the twelve (12) month period immediately prior to the date hereof in an amount or value in excess of One Hundred Thousand Dollars ($100,000);
(xviii) all Contracts containing a grant by a Company or any of its respective Subsidiaries to a Person of any right of first refusal relating to or right of first offer under the Companies Intellectual Property or similar right that limits the ability of the any grant to a Company or any of its Subsidiaries of any right relating to sell, transfer, pledge or otherwise dispose under the Intellectual Property of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a wholeany Person;
(viiixix) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or all other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant Contracts to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues is a party or by which any of their respective assets or businesses are bound that involve Liabilities that singly or in excess of the aggregate exceed One Hundred Thousand Dollars ($1,000,000 during the fiscal 100,000) annually for any year ended beginning on or after January 311, 2024;2008; and
(xivxx) that is all other Contracts to which a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company Seller or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement is a party or (z) that subjects the Company or by which any of its Subsidiaries their respective assets or businesses are bound that are material to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities the businesses of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company Companies and its wholly-owned their respective Subsidiaries.
(b) Each Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) 4.17 of the Company Seller Disclosure Schedule, is referred Letter (or required to herein as a “Material Contract.” Except for Material Contracts that have expired or be set forth in Section 4.17 of the Seller Disclosure Letter) has not been terminated other than expirations by their termsterms after the date hereof. Each Material Contract is in full force and effect and is the legal, all of the Material Contracts are (A) valid and binding on obligation of Sellers or the Companies and their respective Subsidiaries, enforceable in accordance with the terms thereof. There exists no (i) default or event of default by any Seller, Company or the applicable Subsidiary of the Companytheir respective Subsidiaries, as the case may be, andor, to the Knowledge of the CompanySellers, each any other party thereto. No event, and occurrence, condition or act (Bincluding the transactions hereunder) in full force and effectwhich, except (i) as may be limited with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default thereunder by bankruptcyany Seller, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually Company or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, andtheir respective Subsidiaries or, to the Knowledge of the CompanySellers any other party thereto, none of the other parties thereto have, violated any provision of, or committed or failed with respect to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of Sellers, as of the Companydate hereof, since February 1, 2021, no counterparty all of the covenants to be performed by any other party to any Material Contract has set forth in Section 4.17 of the Seller Disclosure Letter (Aor required to be set forth in Section 4.17 of the Seller Disclosure Letter) canceled have been performed in all material respects. Sellers have delivered or otherwise terminatedmade available to Purchaser true and complete copies, or threatened including all amendments, of each Contract set forth in writing Section 4.17 of the Seller Disclosure Letter.
(c) The Companies own all rights with respect to cancel or otherwise the Ogden, Utah and Reventure (North Carolina) projects and any other Engineered Feedstock proposals by the Casella Renewables Group and/or FCR related to terminate, its relationship with potential projects outside the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened Franchise Territory all of which have been assigned to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with Companies prior to the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectClosing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Casella Waste Systems Inc)
Material Contracts. (a) Except (i) as filed as exhibits to Schedule 3.10 of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Seller Disclosure Letter sets forth as of the date hereof, neither the Company nor any Subsidiary hereof a list of the following Contracts that relate primarily to the Business to which a Seller Entity, Conveyed Company or any Affiliate of any thereof is a party (collectively, the “Material Contracts”), true and complete (in all material respects) copies of which Seller has made available to or is bound by any ContractPurchaser prior to the execution hereof:
(i) that is a “material contract” (as such term is defined each Equipment Lease which entails rental payments in Item 601(b)(10) excess of Regulation S-K of $100,000 per annum or $500,000 in the Exchange Act)aggregate;
(ii) that is with each Contract for goods and/or services between (a) any Seller Entity or Conveyed Company on the ten one hand, and any other Seller Entity, Conveyed Company or any Affiliate of any thereof, on the other hand or (10b) largest customers Seller and/or any of its Affiliates (other than the Conveyed Companies) or any of the Company and officers or directors of Seller and/or any of its Subsidiaries during Affiliates (other than the fiscal year ended January 31Conveyed Companies), 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of businessone hand, and any Seller Entity and/or Conveyed Company, on the other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)hand;
(iii) that is with the ten each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee (10excluding items set forth in Schedule 3.13(a) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost Seller Disclosure Letter) in respect of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements Indebtedness in excess of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)$100,000;
(iv) each customer Contract that resulted in payment in excess of $500,000 in the 2009 Fiscal Year or is a Government Contractexpected to result in payment in excess of $1,000,000 in the aggregate within Seller’s fiscal years 2010 and 2011, to the applicable Seller Entity or Conveyed Company, respectively;
(v) evidencing a capital expenditure for which future payments are required each outstanding Contract with vendors of the Business that resulted in payment in excess of $5,000,000500,000 in the 2009 Fiscal Year or is expected to result in payment in excess of $1,000,000 in the aggregate within Seller’s fiscal years 2010 and 2011 by the applicable Seller Entity or Conveyed Company, respectively;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision each Contract materially limiting in any material respect the ability of the Company applicable (A) Asset Selling Entity (or any Subsidiary of following the Company to compete or engage in any line of business or Closing, the Business) to compete with any Person in any geographic area, other than any customary employee non-solicitation connection with such entity’s conduct of the Business or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability Conveyed Company to compete with any Person in connection with such entity’s conduct of the Company Business;
(vii) each material Contract regarding the formation or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) participation in an equity joint venture with a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a wholethird party;
(viii) relating each Contract pursuant to which any Seller Entity or evidencing indebtedness Conveyed Company (as licensor or licensee) licenses any Intellectual Property material to the Business (excluding licenses for borrowed money, debt securities, warrants commercial off-the-shelf computer software that are generally available and which have an acquisition cost of $100,000 or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Companyless);
(ix) any hedging, swap, derivativecollective bargaining or other labor or union Contracts, or similar Contractany contract with any Business Employees;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary material sales representative contracts and material powers of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeattorney;
(xi) that is each outstanding purchase order from a license (or customer on the back-log report as of September 25, 2009 with a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a nonback-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 log amount in excess of $1,000,000, and/or 500,000 (C) that is otherwise material to the Company and its Subsidiaries taken as each a whole;“Material Purchase Order”); and
(xii) that any other Contract or purchase order that, to the Knowledge of Seller, is a Company Real Property Lease with remaining obligations in excess material to the operation of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or Business and does not fall into any of its Subsidiaries recognized revenues the categories above in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesSection 3.10.
(b) Each Contract of the type described above Other than those identified in Section 4.15(a3.10(a)(xi) or any purchase order identified in Section 3.10(a)(xii), whether each Material Contract is in full force and effect.
(c) There exists no default or not set forth in Section 4.15(a) event of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated default by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, andAsset Selling Entity or Conveyed Company or, to the Knowledge of the CompanySeller, each any other party theretoto any such Contract or purchase order, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually with respect to any material term or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company Purchase Order or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages purchase order identified in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectSection 3.10(a)(xii).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Preformed Line Products Co)
Material Contracts. (aSchedule 3.11(a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement is an accurate and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planscomplete list, as of the date hereof, neither of all of the Company nor any Subsidiary following Contracts to which a member of the Company Group is a party (the “Material Contracts”), provided, that, unless otherwise expressly required to be set forth on Schedule 3.11(a) as set forth in clauses (i) through (xvi) below, the term “Material Contracts” shall not include any purchase or is bound sales orders (A) entered into in the Ordinary Course which remain open or outstanding as of the date hereof with existing payment obligations owed by or to the Company Group thereunder of less than $50,000 or (B) under which no obligations or payments of any Contractparty thereto remain outstanding as of the date hereof:
(i) Contracts evidencing Indebtedness for borrowed money owed by the Company Group or providing for any loan to any Person (other than a member of the Company Group or advances to Company Group Employees in the Ordinary Course) or guaranty by any member of the Company Group of any obligation for borrowed money of a third Person that is not a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K member of the Exchange Act)Company Group, in each case, with a principal amount in excess of $1,000,000, and Contracts (other than the Credit Agreement) that expressly limit the ability of any member of the Company Group to incur Indebtedness (including guaranties) or incur Liens;
(ii) that is with the ten (10) largest customers of the all Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Group Employment Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)provide for annual base compensation in excess of $100,000;
(iii) all Company Group IP Agreements that is with are material to the ten (10) largest vendors operation of the business of the Company and its Subsidiaries during the fiscal year ended January 31Group, 2024 (as determined based on cost of goods and services paid other than non-exclusive licenses for commercially available off-the-shelf software licensed to such vendors by the Company during such Group for a one-time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements annual fee of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)less than $50,000;
(iv) that Real Property Leases or leases of personal property under which the Company Group is a Government Contractthe lessee and is obligated to make payments in excess of $50,000 per annum;
(v) evidencing Contracts providing for any business acquisition or disposition or any other investment in, any Person (other than a capital expenditure for member of the Company Group, and other than investments in marketable securities or advances to Company Group Employees in the Ordinary Course excluding any Affiliate Arrangements) by the Company Group entered into at any time during the three (3) year period prior to the date of this Agreement or pursuant to which future payments are required any of the Company Group has ongoing obligations (including continuing economic obligations with respect to the payment of any amounts in excess respect of $5,000,000earn-outs, deferred purchase price or purchase price adjustments) or liabilities;;
(vi) relating to the disposition any labor or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationscollective bargaining agreements;
(vii) containing any joint venture or limited partnership agreements or similar agreements;
(viii) Contracts requiring capital expenditures in an amount in excess of $10,000 in any 12-month period;
(ix) Contracts with (A) a covenant Material Customer or other provision limiting (B) a Material Vendor;
(x) Contracts that (A) require any member of the Company Group to do business with the counterparty thereto on an exclusive basis or restricts or limits, in any material respect the ability respect, a member of the Company Group from owning, managing, soliciting or operating any Subsidiary of the Company to compete business or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessgeographical location, (B) “most favored nation”contain minimum payment obligations in excess of $50,000 per year or take-or-pay obligations or material performance guarantees requiring the Company Group to produce, “exclusivity” deliver or similar provisionshave available a minimum amount of goods, in each case, by any member of the Company Group (C) a grant any right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or third parties (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeReal Property Leases);
(xi) that is a license (Contracts, including any sale or a covenant, consent purchase orders in any amounts under which any payment or other rights in or to use Intellectual Property) obligations on the part of Third Party Rights granted to the Company or any Subsidiary either party remain outstanding as of the Company (A) on an exclusive basisdate hereof, (B) on a non-exclusive basis, if pursuant relating to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholesteel purchases;
(xii) that is a any sale or purchase orders which remain open or outstanding as of the date hereof with payment obligations by or to the Company Real Property Lease with remaining obligations Group thereunder in excess of $1,000,00050,000 in the aggregate;
(xiii) Contracts that involves a material joint venture, profit sharing, partnership expressly limit or similar agreement from which purport to limit the payment of dividends or distributions in respect of the capital stock of any member of the Company Group, the pledging of the capital stock of any member of the Company Group or the incurrence of indebtedness for borrowed money or guarantees by any member of its Subsidiaries recognized revenues the Company Group or the ability of any member of the Company Group in excess any material respect to pledge, sell, transfer or otherwise dispose of $1,000,000 during the fiscal year ended January 31, 2024any material amount of assets or business;
(xiv) Contracts that is are with a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)Authority;
(xv) any stockholders’ agreementContracts that reflect a settlement of any threatened or pending Litigation either (A) in excess of $50,000 and entered into since January 1, proxy, voting trust agreement 2018 or registration rights agreement (B) containing continuing obligations or similar agreements, arrangements or commitments relating to any equity securities of restrictions on the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its SubsidiariesGroup; orand
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesAffiliate Arrangement.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as As of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractby:
(iA) any lease of real or personal property providing for annual rentals of $300,000 or more;
(B) any Contract (other than purchase orders for goods purchased by the Company) that is reasonably likely to require either (x) annual payments to or from the Company and its Subsidiaries of more than $100,000 or (y) aggregate payments to or from the Company and its Subsidiaries of more than $100,000;
(C) other than with respect to any partnership that is wholly-owned by the Company or any wholly-owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns a “material contract” voting or economic interest;
(D) any Contract (other than among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $100,000;
(E) any Contract required to be filed as such term is defined in an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of under the Exchange Securities Act);
(iiF) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders competition Contract or statements of work or invoices entered into other Contract that (I) purports to limit in any material respect either the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course type of business pursuant to in which the Company or its Subsidiaries have material continuing obligations;
(viior, after the Effective Time, Parent or its Subsidiaries) containing (A) a covenant may engage or other provision limiting the manner or locations in which any of them may so engage in any business, (II) could require the disposition of any material respect the ability assets or line of business of the Company or any Subsidiary of its Subsidiaries or, after the Company to compete Effective Time, Parent or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessits Subsidiaries, (BIII) grants “most favored nation”nation”status that, “exclusivity” following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries or similar provisions, (CIV) a right of first refusal prohibits or right of first offer or similar right that limits the ability right of the Company or any of its Subsidiaries to sellmake, sell or distribute any products or services or use, transfer, pledge license, distribute or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the enforce any Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a wholeIntellectual Property rights;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ixG) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or Contract to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of $1,000,000 during the fiscal year ended January 31, 2024other party or any of its Affiliates;
(xivH) that is a settlement, conciliation or similar any Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require between the Company or any of its Subsidiaries to pay consideration and any director or officer of the Company or any Person beneficially owning five percent or more than $1,000,000 after of the date of this Agreement or outstanding Shares;
(zI) that subjects any Contract providing for indemnification by the Company or any of its Subsidiaries to of any material ongoing requirements or restrictions Person, except for (other than ordinary course confidentiality requirements or restrictions);
x) guarantees of franchisee obligations, and (xvy) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating such Contract that is (I) not material to any equity securities of the Company or any of its Subsidiaries and (II) entered into in the ordinary course of business;
(J) any Contract that contains a put, call or relating similar right pursuant to disposition, voting or dividends with respect to any equity securities of which the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would Subsidiaries could be required to be disclosed under Item 404 purchase or sell, as applicable, any equity interests of Regulation S-K promulgated under the Exchange Act, other any Person or assets that have a fair market value or purchase price of more than $100,000;
(K) any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on which the Company or the applicable Subsidiary any of its Subsidiaries is a party concerning Intellectual Property, including, without limitation, Contracts granting the Company, as the case may beany of its Subsidiaries, or any other Person rights to use any Company Intellectual Property; and
(L) any other Contract or group of related Contracts that, if terminated or subject to the Knowledge of the Company, each other a default by any party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notwould, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except result in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and(the Contracts described in clauses (A) – (L), together with all exhibits and schedules to such Contracts, being the “Material Contracts”).
(ii) A copy of each Material Contract has previously been delivered to Parent and each such Contract is a valid and binding agreement of the Company or one of its Subsidiaries, as of February 1the case may be, 2021and is in full force and effect, to the Knowledge of the Company, and neither the Company nor any Subsidiary of its Subsidiaries nor, to the Company has received written notice knowledge of any of executive officer or the foregoing. To the Knowledge general counsel of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled other party thereto is in default or otherwise terminated, or threatened breach in writing to cancel or otherwise to terminate, its relationship with any respect under the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount terms of business that any such counterparty presently engages in agreement, contract, plan, lease, arrangement or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectcommitment.
Appears in 1 contract
Material Contracts. (a) Except (iSection 3.11(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement Disclosure Schedule sets forth a complete and accurate list of Contracts to which the other agreements entered into in connection with Company or any of its Subsidiaries is a party that fall within the transactions contemplated hereby following categories and (iii) for Company Employee Plans, existing as of the date hereofhereof (collectively, neither the “Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Material Contracts”):
(i) any Contract for the purchase or sale of services, equipment or other assets (other than relating to Oil and Gas Properties) that is a “either (1) provides for annual payments by the Company and/or its Subsidiaries of $500,000 or more; or (2) gives rise to anticipated receipts of more than $500,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the Company and/or its Subsidiaries of any material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)penalty;
(ii) any material partnership, joint venture or other similar agreement or arrangement;
(iii) any Contract relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which the Company has material ongoing obligations entered into within the three years prior to the date hereof;
(iv) any Contract as obligor or guarantor relating to Indebtedness (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $500,000;
(v) any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that is materially restricts the ability of the Company or any of the Company’s Subsidiaries to (A) compete in any line of business or geographic area or with any Person during any period of time after the ten Closing or (10B) largest customers make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties;
(vi) any Contract to sell, lease, farmout, exchange or otherwise dispose of all or any part of the Oil and Gas Properties of the Company and its Subsidiaries;
(vii) each Contract for the sale, purchase, exchange or other disposition of Hydrocarbons produced from the Oil and Gas Leases or ▇▇▇▇▇ of the Company and its Subsidiaries;
(viii) each Contract that contains any drilling commitments;
(ix) each Contract for any material Derivative Transaction of the Company or any of its Subsidiaries;
(x) any joint development agreement, exploration agreement, participation, farmout, farm in or program agreement or similar Contract (or series of related Contracts) requiring the Company or any Subsidiary to make expenditures that would reasonably be expected to be in excess of (x) $1,000,000 in any calendar year or (y) $2,000,000 during the term thereof, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) any Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of the Company and its Subsidiaries during the fiscal year ended January 31per day over a period of one month (calculated on a yearly average basis) and for a term greater than 10 years, 2024 (as determined based on revenue received from such customers during such time period) (excluding except for any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts terminable without penalty within 90 days;
(xii) each Contract that contains any standstill, “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal or any similar requirement or right in favor of any third party, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements or unit agreements affecting the business or the Oil and Gas Properties of the Company or any of its Subsidiaries;
(xiii) (A) any employment Contract pursuant to which revenue a Company Employee is paid or payable entitled to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required receive annual base compensation in excess of $5,000,000;
200,000, (viB) relating any consulting Contract pursuant to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration which an independent contractor is entitled to receive annual payments in excess of $5,000,000 200,000, (C) any severance Contract that provides for mandatory or potential severance payments by the Company or any of its Subsidiaries outside in excess of $200,000 and (D) the ordinary course form of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or any other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete Contract with any Person in any geographic areaemployee, other than any customary employee non-solicitation officer, or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability director of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license contains any non-compete or non-solicitation covenants, (y) contains any change in control clause, or a covenant, consent (z) modifies the at-will nature of the employment of any employee or other rights in or to use Intellectual Property) granted otherwise requires advance notice for the termination of the Contract by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeSubsidiaries;
(xixiv) that is a license (any Contract with any staffing agency, temporary employee agency, third-party workforce provider, or a covenant, consent or other rights in or professional employer organization to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)party;
(xv) any stockholders’ agreement, proxy, voting trust agreement each Contract or registration rights agreement or similar agreements, arrangements or commitments relating group of related Contracts reasonably expected to any equity securities result in Company Transaction Expenses of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiariesmore than $100,000; orand
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesthat constitutes a seismic, data or geophysical license, agreement or permit.
(b) Each Company Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) is a valid and binding agreement of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all one of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party theretoits Subsidiaries, and (B) is in full force and effect, and none of the Company, any Subsidiary of the Company or, to the Company’s knowledge, any other party is in default or breach under the terms of any such Company Material Contract, except (i) as may for any such defaults or breaches which would not reasonably be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notexpected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Talos Energy Inc.)
Material Contracts. (a) Except Section 5.9(a) of the Disclosure Schedule lists each of the following Contracts of the Group Companies or by which any Group Company is otherwise bound (ieach Contract set forth or required to be set forth on Section 5.9(a) as filed as exhibits of the Disclosure Schedule and each Company IP Agreement set forth or required to be set forth in Section 5.12(c) of the Disclosure Schedule, a “Material Contract”), identified in such Section of the Disclosure Schedule by reference to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contractapplicable subsection below:
(i) that is a “material contract” all Contracts involving aggregate payments to or from the Company in excess of $10,000 and which, in each case, cannot be cancelled by the applicable Group Company without penalty or without more than thirty (as such term is defined in Item 601(b)(1030) of Regulation S-K of the Exchange Act)days’ notice;
(ii) that is all Contracts with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts suppliers pursuant to which revenue is any Group Company has paid or payable to more than $10,000 in the Company or its Subsidiaries)last 12 months;
(iii) that is all Contracts with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts customers pursuant to which cost of goods and services is paid or payable by any Group Company has received more than $10,000 in the Company)last 12 months;
(iv) all Contracts that is require any Group Company to purchase its total requirements of any product or service from a Government Contractthird party;
(v) evidencing all Contracts providing for a capital expenditure Group Company to be the exclusive provider of any product or service to any Person or for which future payments are required in excess any Person to be the exclusive provider of $5,000,000any product or service to any Group Company, or that otherwise involve the granting by any Person to a Group Company or a Group Company to any Person of exclusive rights of any kind;
(vi) relating to all Contracts that provide for the disposition or acquisition assumption of any businessTax, equity, environmental or all or substantially all of the assets other Liability of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationsPerson;
(vii) containing all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any Person or any real property (Awhether by merger, sale of stock, sale of assets or otherwise);
(viii) a covenant all Contracts with distributors and sales representatives;
(ix) all broker, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(x) all Contracts with employees and independent contractors and consultants;
(xi) except for Contracts relating to trade receivables or trade payables, all Contracts relating to Indebtedness;
(xii) all franchise, construction, fidelity, performance and other provision limiting bonds, guaranties in lieu of bonds and letters of credit posted by or on behalf of the Company;
(xiii) all Contracts with any material respect Governmental Authority;
(xiv) all Contracts that limit or purport to limit the ability of the Company or any Subsidiary of the Group Company to compete or engage in any line of business or to compete with any Person or in any geographic areaarea or during any period of time, that restrict the ability of any Group Company to do business with any Person or hire or solicit any Person, or that restricts the right of any Group Company to sell to or purchase from any Person, or that grants the other than party or any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) third person “most favored nation”” status or any type of special discount rights, “exclusivity” or grants any rights of first refusal, rights of first negotiation or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)Person;
(xv) any stockholders’ agreementall Contracts pursuant to which a Group Company is the lessee or lessor of, proxyor holds, voting trust agreement uses, or registration rights agreement or similar agreements, arrangements or commitments relating makes available for use to any equity securities of the Company or any of its Subsidiaries or relating to dispositionPerson, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on any real property or (B) any tangible personal property and, in the Company case of clause (B), that involves an aggregate future or the applicable Subsidiary of the Companypotential liability or receivable, as the case may be, andin excess of $10,000;
(xvi) all Contracts for the sale or purchase of any real property, or for the sale or purchase of any tangible personal property in an amount in excess of $10,000;
(xvii) all Contracts providing for indemnification to or from any Person and that was not entered into the Ordinary Course of Business;
(xviii) all Contracts for any joint venture, partnership or similar arrangement by any Group Company;
(xix) all collective bargaining agreements or Contracts with any Union;
(xx) all Contracts concerning the occupancy, management or operation of any Leased Real Property (including brokerage contracts);
(xxi) all Contracts that provide any other Person with “most favored nation” or similar pricing or contain any special warranty, rebate arrangement, “take or pay” arrangement, ▇▇▇▇-down or discount arrangement, agreement to take back or exchange goods, consignment arrangement or similar understanding with a customer or supplier of any Group Company;
(xxii) all powers of attorney granted by a Group Company to any Person for any purpose whatsoever;
(xxiii) all Contracts purporting to be binding on any Affiliate of any Group Company;
(xxiv) all Contracts granting any rights of first refusal, rights of first negotiation or similar rights to any Person;
(xxv) all Contracts that involve payments based, in whole or in part, on profits, revenues, fee income or other financial performance measures of any Group Company;
(xxvi) any other Contract that is material to the Knowledge of Group Companies and not otherwise disclosed pursuant to this Section 5.9; and
(xxvii) any bids, proposals or quotations, which if accepted would constitute a Material Contract.
(b) Each Material Contract is valid and binding on the Company, each other party thereto, applicable Group Company in accordance with its terms and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary None of the Company has, andGroup Companies or, to the Knowledge Company’s Knowledge, any other party thereto is in breach of the Company, none or default under (or is alleged to be in breach of the other parties thereto have, violated or default under) in any provision ofmaterial respect, or committed has provided or failed received any notice of any intention to perform terminate, any act under, and no Material Contract. No party to a Material Contract has exercised any termination rights with respect thereto or has given notice of any significant dispute with respect thereto. No event or condition existscircumstance has occurred that, which (with notice or without notice, lapse of time or both) , would constitute a breach an event of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to under any Material Contract has or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (Aincluding all modifications, amendments and supplements thereto and waivers thereunder) canceled or otherwise terminated, or threatened in writing have been made available to cancel or otherwise Acquiror.
(c) No Group Company is a party to terminate, its relationship with the Company any Contract that will bind Acquiror or any Subsidiary of its Affiliates (as applicableother than such Group Company) with respect to Acquiror’s or (B) decreased materially Acquiror’s Affiliates’ own customers, products or threatened to decrease materially services or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectotherwise.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Optimus Healthcare Services, Inc.)
Material Contracts. (a) Except (i) as filed as exhibits to Schedule 4.17 lists the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, following written contracts and other similar Contracts that are ancillary to Contracts pursuant written agreements to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party:
(a) any agreement (or group of related agreements) for the ordinary course lease of business pursuant personal property to which the Company or its Subsidiaries have material continuing obligationsfrom any Person providing for lease payments in excess of $350,000 per annum;
(viib) containing any agreement (Aor group of related agreements) a covenant for the purchase or sale of raw materials, commodities, supplies, products, or other provision limiting personal property, or for the furnishing or receipt of services (i) which cannot be terminated without penalty upon 90 days or less prior written notice and (ii) which involve annual payments in excess of $350,000;
(c) any material respect agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $250,000;
(e) any agreement for the ability employment of any individual on a full-time, part-time, consulting, or other basis providing annual base compensation in excess of $150,000, other than agreements with a salesperson or customer service representative of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course Ordinary Course of business, Business;
(Bf) “most favored nation”, “exclusivity” any agreement under which it has advanced or similar provisions, (C) a right loaned in excess of first refusal or right of first offer or similar right $50,000 that limits the ability is outstanding as of the Company or date of this Agreement, to any of its Subsidiaries directors, officers, and employees (other than loans or advances against commissions to sell, transfer, pledge salespersons or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, customer service representatives of the Company or any Subsidiary of the Company, Company in the Ordinary Course of Business) or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted connection with an acquisition by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeSubsidiaries;
(xig) that is a license any agreement under which it has granted any Person any registration rights (or a covenantincluding, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basiswithout limitation, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company demand and its Subsidiaries taken as a wholepiggyback registration rights);
(xiih) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar any agreement from under which the Company or any of its Subsidiaries recognized revenues has advanced or loaned any other Person amounts in the aggregate exceeding $100,000 (other than loans or advances against commissions to salespersons or customer service representatives of the Company or a Subsidiary of the Company in the Ordinary Course of Business);
(i) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is 250,000 or under which it has imposed a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or lien on any of its Subsidiaries to pay assets, tangible or intangible (other than liens permitted under the Company's existing senior credit facility); or
(j) any other agreement (or group of related agreements) the performance of which involves consideration of more than $1,000,000 from and after the date of this Agreement in excess of $500,000. Each contract, arrangement, commitment or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract understanding of the type described above in this Section 4.15(a)4.17, whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, Schedule 4.17 is referred to herein as a “"COMPANY MATERIAL CONTRACT." The Company has made available to Parent a correct and complete copy of each Company Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are Contract (as amended to date). With respect to each such agreement: (A) valid and binding on the Company or the applicable Subsidiary of the Companyagreement is legal, as the case may bevalid, andbinding, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect and enforceable in accordance with its terms, except as to the effect, except if any, of (i) as may be limited by bankruptcy, insolvency, moratorium and applicable bankruptcy or other similar Applicable Law laws affecting creditors’ the rights generally and by general principles of equity creditors generally, and (ii) as would notrules of law governing specific performance, individually or in injunctive relief and other equitable remedies; (B) neither the aggregateCompany, reasonably be expected nor to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary knowledge of the Company hasany other party, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, is in breach or committed or failed to perform any act underdefault, and no event has occurred which with notice or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default underdefault, or permit termination, modification, or acceleration, under the provisions of any Material Contract, except in each case for those violations, acts agreement; and (or failures to actC) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of neither the Company, neither nor to the Company nor any Subsidiary knowledge of the Company any other party, has received written notice of repudiated any provision of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectagreement.
Appears in 1 contract
Material Contracts. (a) Except Section 4.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the Company (together with all Leases listed in Section 4.09(c) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) as filed as exhibits to each agreement of the Company SEC Documents, (ii) for this Agreement and involving aggregate consideration payable by the other agreements entered into Company in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as excess of $250,000 or requiring performance by any party more than one year from the date hereof, neither which, in each case, cannot be cancelled by the Company nor any Subsidiary of the Company is a party to without penalty or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)without more than 90 days’ notice;
(ii) that is with the ten (10) largest customers each agreement of the Company and its Subsidiaries during involving aggregate consideration payable to the fiscal Company in excess of $250,000 or requiring performance by any party more than one year ended January 31from the date hereof, 2024 which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice;
(as determined based on revenue received from such customers during such time periodiii) all agreements that relate to the sale of any of the Company’s assets, other than in the ordinary course of business, for consideration in excess of $250,000;
(iv) excluding any non-disclosure agreements, data processing agreements, purchase orders and invoices in the ordinary course of business and other agreements relating to trade receivables and payables in the ordinary course of business, all agreements relating to Indebtedness of the Company, in each case having an outstanding principal amount in excess of $250,000;
(v) all agreements between or statements among the Company on the one hand and any Shareholder, Seller or any Related Person of work any Shareholder or invoices entered into Seller (other than the Company) on the other hand;
(vi) all agreements that limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(vii) all agreements that require the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions, other than sole source supplier arrangements;
(viii) all agreements with any Governmental Authority to which the Company is a party;
(ix) all employment, consulting, or independent contractor agreements to which the Company is a party, other than in the ordinary course of business;
(x) all agreements involving leased Real Property;
(xi) all agreements with sole source suppliers, other than in the ordinary course of business;
(xii) all agreements (including consent decree) containing covenants of the Company granting the other party or any Person “most favored nation” or similar status or any right of first refusal, first notice or first negotiation;
(xiii) all leases, subleases or similar agreements with any Person under which (A) the Company is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person or (B) the Company is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by the Company, in any such case that has an aggregate future liability or receivable, as the case may be, in excess of $250,000 and is not terminable by the Company by notice of not more than 60 days and for a cost of less than $250,000;
(xiv) all agreements (A) under which the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person, other than in the ordinary course of business, and (B) under which the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to any Employee or Retained Employee, other than in the ordinary course of business;
(xv) all agreements providing for the services of any dealer, distributor, sales representative, franchisee or similar Contracts that are ancillary to Contracts pursuant representative, other than in the ordinary course of business;
(xvi) all agreements with Top Customers or Top Suppliers;
(xvii) all collective bargaining agreements or agreements with any labor organization, union or association to which revenue the Company is paid or payable a party; and
(xviii) all agreements under which any other Person grants to the Company any rights in or its Subsidiaries);
(iii) that is with the ten (10) largest vendors to any of the Licensed Company and its Subsidiaries during the fiscal year ended January 31Intellectual Property, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any except for shrink-wrap or similar non-disclosure agreements, data processing agreements, purchase orders exclusive licenses for the use of off-the-shelf or statements of work generally commercially available software or invoices services entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost business with fees of goods and services is paid $10,000 or payable by the Company);less; and
(ivxix) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to agreements under which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in grants any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Owned Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesPerson.
(b) Each Contract of the type described above in Section 4.15(a), whether or not Except as set forth in on Section 4.15(a4.08(b) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the CompanySchedules, each other party thereto, and (B) Material Contract is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium effect and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision is not in material breach of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021no party has given written or, to the Knowledge of the CompanySeller’s Knowledge, neither the Company nor any Subsidiary of the Company has received written oral notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty intent to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have terminate a Material Adverse EffectContract.
Appears in 1 contract
Material Contracts. (a) Except Schedules 2.16(a)(i) through (ixxv) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company Disclosure Letter set forth a list of each of the following Contracts to which the Company or any of the Subsidiaries is a party to or is bound by any Contract:that are in effect on the Agreement Date (collectively, the “Material Contracts”):
(i) that is any Contract with a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)Significant Buyer or Seller or a Significant Supplier;
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders Contract providing for annual payments by or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)any of the Subsidiaries (or under which the Company or any of the Subsidiaries has made or received such payments) that involve obligations (contingent or otherwise) in an aggregate amount of $50,000 or more;
(iii) that is with any dealer, distributor, referral or similar agreement, or any Contract providing for the ten (10) largest vendors grant of rights to reproduce, license, market, refer or sell its products or services to any other Person or relating to the advertising or promotion of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders Business or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable any third parties advertise on any websites operated by the Company);
(iv) (A) any joint venture Contract, (B) any Contract that is involves a Government Contract;
sharing of revenues, profits, cash flows, expenses or losses with other Persons and (vC) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to any Contract that involves the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 payment by the Company or any of its the Subsidiaries outside of royalties to any other Person;
(v) any Contract relating to any co-branded products, brand partnerships, affiliate marketing arrangements or other similar arrangements;
(vi) any separation agreement or severance agreement or other Contract providing for the ordinary course payment of business pursuant to compensation or benefits upon or in connection with the transactions with any current or former employees under which the Company or its any of the Subsidiaries have material continuing obligationshas any actual or potential Liability;
(vii) containing any Contract for or relating to the employment or service of any director, officer, employee, consultant or beneficial owner of more than 5% of the total shares of Company Common Stock or any other type of Contract with any of the Company’s or any of the Subsidiaries’ officers, employees, consultants or beneficial owners of more than 5% of the total shares of Company Common Stock, as the case may be;
(viii) any Contract (A) a covenant pursuant to which any other party is granted exclusive rights or other provision limiting in “most favored party” rights of any material type or scope with respect the ability to any of the Company Products or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee nonCompany-solicitation or no-hire clauses entered into in the ordinary course of businessOwned Intellectual Property, (B) “most favored nation”, “exclusivity” containing any non-competition covenants or similar provisionsother restrictions relating to the Company Products or Company-Owned Intellectual Property, (C) a right of first refusal or right of first offer or similar right that limits or would limit the ability freedom of the Company or any of its the Subsidiaries or any of their respective successors or assigns or their respective Affiliates to sell(I) engage or participate, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or compete with any other contingent, deferred or fixed payment obligation of the Company and its SubsidiariesPerson, in each caseany line of business, that is material market or geographic area with respect to the Company and its Subsidiaries, taken as a whole;
(viii) relating to Products or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company-Owned Intellectual Property, or to make use of any guarantee Company-Owned Intellectual Property, including any grants by the Company or of its the Subsidiaries of the obligations 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; (D) containing any “take or pay,” minimum commitments or similar provisions; or (E) that is set forth on Schedule 2.12(b)(vi) of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)Disclosure Letter;
(ix) any hedging, swap, derivative, standstill or similar Contractagreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or the Subsidiaries or in each case, the assets of the Company or the Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of the Subsidiaries;
(x) that is other than “shrink wrap” and similar generally available commercial end-user licenses to software licensed to the Company for a total license fee of $50,000 or less (or a covenantfor the total term of the Contract), consent or other rights in or to use Intellectual Property) licenses of Open Source Materials and non-exclusive licenses granted by contractors, customer and end users of the Company and the Subsidiaries in the ordinary course of business consistent with past practice, all licenses, sublicenses and other Contracts to which the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) Subsidiaries is a party and pursuant to which the Company or any Subsidiary received of the Subsidiaries is authorized to use any Third-Party Intellectual Property used in the development, marketing or licensing revenues for of the fiscal year ended January 31Company Products;
(xi) any license, 2024 in excess sublicense or other Contract to which the Company or any of $1,000,000the Subsidiaries is a party and pursuant to which any Person is authorized to use any Company-Owned Intellectual Property, other than non-exclusive licenses granted to customers by the Company in the ordinary course of business, and/or business consistent with past practice to contractors or on its standard unmodified form of end user agreement (Ca copy of which has been made available to Acquirer) that is otherwise material to the Company and its Subsidiaries taken as or a wholesubstantially similar form;
(xixii) that is a license (or a covenantany license, consent sublicense or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if Contract pursuant to which the Company or any Subsidiary made payments during of the fiscal year ended January 31, 2024 in excess Subsidiaries has agreed to any restriction on the right of $1,000,000, and/or (C) that is otherwise material to the Company and its or any of the Subsidiaries taken as a whole;
(xii) that is a Company Real to use or enforce any Company-Owned Intellectual Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership rights or similar agreement from pursuant to which the Company or any of its the Subsidiaries recognized revenues agrees to encumber, transfer or sell rights in excess or with respect to any Company-Owned Intellectual Property rights;
(xiii) any Contracts relating to the membership of, or participation by, the Company or any of $1,000,000 during the fiscal year ended January 31Subsidiaries in, 2024or the affiliation of the Company or any of the Subsidiaries with, any industry standards group or association;
(xiv) that is a settlementany Contract providing for the development of any software, conciliation technology or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require Intellectual Property Rights for the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement Subsidiaries, independently or (z) that subjects jointly, either by or for the Company or any of its the Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements employee invention assignment agreements and consulting agreements with Authors on the Company’s or restrictionsany of the Subsidiaries’ standard form of agreement, copies of which have been provided to Acquirer);
(xv) any stockholders’ agreementconfidentiality, proxysecrecy or non-disclosure Contract other than any such Contract entered into by the Company or any of the Subsidiaries in the ordinary course of business consistent with past practice;
(xvi) any settlement agreement with respect to any Legal Proceeding;
(xvii) any Contract pursuant to which rights of any third party are triggered or become exercisable in connection with or as a result of the execution of this Agreement or the consummation of the Transactions;
(xviii) any Contract or plan (including any stock option, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any equity shares of Company Capital Stock or any other securities of the Company or any of the Subsidiaries or, in each case, any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights disclosed on Schedule 2.2(a) or Schedule 2.2(b) of the Company Disclosure Letter;
(xix) any Contract with any labor union or any collective bargaining agreement or similar contract with its Subsidiaries employees;
(xx) any trust indenture, mortgage, promissory note, loan agreement or relating other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to dispositionbe capitalized in accordance with GAAP;
(xxi) any Contract of guarantee, voting surety, support, indemnification (other than pursuant to its standard end user agreements), assumption or dividends endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person;
(xxii) any Contract for capital expenditures;
(xxiii) any Contract pursuant to any equity securities of which the Company or any of its Subsidiaries; orthe Subsidiaries is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property;
(xvixxiv) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among pursuant to which the Company and its whollyor any of the Subsidiaries has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Contract pursuant to which it has any Equity Interest in any other Person; and
(xxv) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-owned Subsidiariestier 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”).
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for All Material Contracts that have expired or terminated by their terms, all are in written form. Each of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) as may be limited by bankruptcysubject only to the effect, insolvencyif any, moratorium of applicable bankruptcy and other similar Applicable Law affecting creditors’ the rights of creditors generally and by general principles rules of equity law governing specific performance, injunctive relief and (ii) as other equitable remedies. There exists no material default or event of default or event, occurrence, condition or act, with respect to either the Company or the Subsidiaries, or to the knowledge of the Company with respect to any other contracting party, that, with the giving of notice, the lapse of time, or both, would not, individually or in the aggregate, reasonably be expected to have (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company or the Subsidiaries under any Material Adverse EffectContract, or (D) the right to cancel, terminate or modify any Material Contract. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company Subsidiaries has received any written notice of regarding any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled actual or otherwise terminated, possible violation or threatened in writing to cancel or otherwise to terminate, its relationship with breach by the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materiallyof the Subsidiaries of, the amount of business that any such counterparty presently engages in or presently conducts with default by the Company or any of the Subsidiaries under, or intention to cancel or modify any Material Contract. True, correct and its Subsidiaries other than, in each case, as would not reasonably be expected complete copies of all Material Contracts have been provided to have a Material Adverse EffectAcquirer at least three Business Days prior to the Agreement Date.
Appears in 1 contract
Sources: Merger Agreement (Etsy Inc)
Material Contracts. (a) Except Section 3.09(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the Company (together with all Leases listed in Section 3.10(b) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) as filed as exhibits to each agreement of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into involving aggregate consideration in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as excess of $100,000 or requiring performance by any party more than one year from the date hereof, neither which, in each case, cannot be cancelled by the Company nor any Subsidiary of the Company is a party to without penalty or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)without notice;
(ii) all agreements that is with relate to the ten (10) largest customers sale of any of the Company and its Subsidiaries during the fiscal year ended January 31Company’s assets, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)for consideration in excess of $100,000;
(iii) all agreements that is with relate to the ten (10) largest vendors acquisition of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and a material amount of stock or assets of any other similar Contracts that are ancillary to Contracts pursuant to which cost Person or any Real Property (whether by merger, sale of goods and services is paid stock, sale of assets or payable by the Companyotherwise), in each case involving amounts in excess of $100,000;
(iv) that is a Government Contractexcept for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the Company, in each case having an outstanding principal amount in excess of $100,000;
(v) evidencing a capital expenditure for which future payments are required in excess all agreements between or among the Company on the one hand and Seller or any Affiliate of $5,000,000Seller (other than the Company) on the other hand;
(vi) relating to the disposition all collective bargaining agreements or acquisition of agreements with any businesslabor organization, equity, union or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant association to which the Company or its Subsidiaries have material continuing obligationsis a party;
(vii) any agreement containing (A) a any covenant or other provision limiting in any material respect the ability of whereby the Company or any Subsidiary of the Company agrees not to compete or engage in any line of business or to geographic market, or compete with any Person in any line of business or geographic areamarket;
(viii) any agreement pursuant to which the Company has made a loan in excess of $25,000 to, has any material ownership interest in, or has a material interest in the profits of, any other Person or other business enterprise; and
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements relating to any Indebtedness or the borrowing of money or extension of credit in a principal amount in excess of $25,000 that is outstanding or may be incurred on the terms thereof, other than any customary employee non-solicitation or no-hire clauses entered into accounts receivables and payables in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the All Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of in full force and effect and enforceable against the Company, as the case may be, and, to the Knowledge of the CompanySeller’s Knowledge, each other party thereto, valid and (B) in full force and effecteffect and enforceable against the other party or parties thereto, except (i) as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Applicable Law Laws affecting creditors’ the rights of creditors generally and by general equitable principles of (whether considered in a proceeding in equity and or at law), (ii) as would notthe remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of a court of competent jurisdiction before which any proceeding may be brought, individually or in and (iii) as set forth on Section 3.09(b) of the aggregate, reasonably be expected to have a Company Material Adverse EffectDisclosure Schedules. Neither the Company nor any Subsidiary of the Company has, andnor, to the Knowledge of the CompanySeller’s Knowledge, none of the other parties thereto havethereto, has violated any provision of, or committed or failed to perform any act underwhich, and no event or condition exists, which (with or without notice, lapse of time or both) both would constitute a breach of or default under, under the provisions of of, any Material Contract, except in each case for those violations, acts (or failures to act) violations and defaults which, individually or in the aggregate, which would not reasonably be expected to give rise to a material liability or to otherwise materially adversely affect the Company.
(c) Correct and complete copies of all Material Contracts have a Company Material Adverse Effect and, as of February 1, 2021, been made available to Buyer prior to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectdate hereof.
Appears in 1 contract
Material Contracts. (a) Except (iSection 4.17(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement Disclosure Schedule contains an accurate and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planscomplete list, as of the date hereof, neither of the following Contracts (excluding Company nor any Subsidiary of Employee Benefit Plans) to which the Company is a party to or by which it is bound as of the date hereof (each such Contract, together with each Contract required to be filed by any Contract:
(i) that is the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);SEC) a “Material Contract”):
(iii) that is with each Contract (1) materially limiting the ten (10) largest customers freedom or right of the Company to engage in any line of business or compete with any other Person in any geographic area; (2) containing any “most favored nations” terms and its Subsidiaries during conditions (including with respect to pricing) or exclusivity obligations; (3) granting any right of first refusal, right of first offer, right of negotiation or similar right with respect to any material assets or business of the fiscal year ended January 31 Company or (4) containing any other term, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders condition or statements of work clause that individually or invoices entered into in the ordinary course of businessaggregate, and other similar Contracts that are ancillary limits or purports to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting limit in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic areaown, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessoperate, (B) “most favored nation”manufacture, “exclusivity” or similar provisionssell, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to selldistribute, transfer, pledge or otherwise dispose of assetsany material assets or business of the Company;
(ii) each Contract that provides for indemnification (or reimbursement or advancement of legal fees or expenses) of any current or former officer, rights director or properties employee of the Company;
(iii) each Lease under which the Company leases, subleases, licenses or sublicenses any real property (Dwhether as lessor or lessee);
(iv) a minimum purchaseeach Contract not otherwise disclosed pursuant to this Section 4.17(a) requiring payment by or to the Company of more than an aggregate of $500,000 for the year ended December 31, minimum volume2023;
(v) each Contract that constitutes any acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingentcontingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $250,000;
(vi) each Contract for any joint venture, deferred partnership, strategic alliance, collaboration, material research or fixed payment obligation of material development project or similar arrangement;
(vii) each Contract relating to the Company and its Subsidiaries, in each case, Product that is material to the Company’s business and in each case that relates to the research, testing, clinical trial, development, commercialization, manufacture, marketing, importation, exportation, sale, distribution, or supply of the Company and its Subsidiaries, taken as a wholeProduct;
(viii) relating each Contract (other than trade debt or letters of credit incurred in the ordinary course of business consistent with past practice and the documentation executed in connection with the Bridge Loan) related to or evidencing indebtedness Indebtedness for borrowed money, debt securities, warrants money or other rights to acquire any debt securities, guarantees thereof or the granting of Liens over the property or assets of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Companyother than Permitted Liens);
(ix) each Contract under which the Company has, directly or indirectly, made any hedgingloan, swap, derivativeextension of credit or capital contribution to, or similar Contractother investment in, any Person (other than investments in marketable securities in the ordinary course of business consistent with past practice);
(x) that is each Contract containing a license (standstill or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary similar obligation of the Company to Company Intellectual Property a Third Party (A) on an exclusive basis, (B) pursuant to which other than any Contract entered into with other potential bidders in connection with the process involving the sale of the Company or any Subsidiary received licensing revenues for which by their terms will expire upon the fiscal year ended January 31, 2024 in excess public announcement of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeTransactions);
(xi) that is a license each Contract containing continuing obligations or interests involving (or a covenant, consent 1) “milestone” or other rights in similar contingent payments, including upon the achievement of regulatory or to use Intellectual Propertycommercial milestones or (2) payment of Third Party Rights granted to royalties or other amounts calculated based upon sales, revenue, income or similar measure of the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeProduct;
(xii) that is a Company Real Property Lease with remaining obligations each Contract in excess respect of Indebtedness of $1,000,000250,000 or more;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or each Contract with any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024Governmental Authority;
(xiv) that is a settlement, conciliation or similar each Outbound IP License Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);and Inbound IP License Contract; and
(xv) any each stockholders’ agreement’, proxyinvestor rights, voting trust agreement or registration rights agreement rights, tax receivables or similar agreements, arrangements or commitments related Contract or any Contract relating to the exercise of any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends rights with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesSecurities.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither , (i) each of the Material Contracts is legal, valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company nor any Subsidiary of the Company has, and, to the Knowledge knowledge of the Company, none of each other party thereto, subject to the Bankruptcy and Equity Exception; (ii) the Company is not in default under any Material Contract, nor, to the knowledge of the other parties thereto haveCompany, violated does any provision ofcondition exist that, with notice or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) , would constitute a default thereunder by the Company; and (iii) to the knowledge of the Company, no other party to any Material Contract is in material default thereunder, nor does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder of such other party. As of the date hereof, the Company has not received or given any written notice of termination or cancellation under any Material Contract or received or given any written notice of breach of or default under, the provisions of in any material respect under any Material Contract, except in each case for those violations, acts (or failures which breach has not been cured. The Company has made available to act) Parent accurate and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as complete copies of February 1, 2021, to the Knowledge all of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContracts.
Appears in 1 contract
Material Contracts. (a) Except as set forth on Schedule 4.6(a) (itogether with all Real Property Leases and Affiliate Agreements, the “Material Contracts”) as filed as exhibits to the Company SEC Documents, (ii) for and other than this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansAgreement, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the no Group Company is a party to or is bound by any Contractany:
(i) Contract for the employment of any officer, individual employee or other person on a full-time, part-time, consulting or other basis, or employment agreement, severance agreement or other agreement that is require payments upon a “material contractchange in control” (as such term is defined in Item 601(b)(10) or similar payments covering any employee or director or former employee or director of Regulation S-K of the Exchange Act)any Group Company;
(ii) that is commission and/or sales Contract with (A) any current employee, individual consultant, contractor or salesperson and pursuant to which the ten (10) largest customers applicable Group Company made payments in excess of the Company and its Subsidiaries $100,000 during the fiscal year eleven-month period ended January 31November 30, 2024 2010, (as determined B) any partner of any Group Company or any distributor of any Company Products providing for the payment of any commissions or other sales compensation to any employees or agents of such partner or distributor and pursuant to which the applicable Group Company made payments in excess of $100,000 during the eleven-month period ended November 30, 2010, or (C) under which a firm or other organization provides commission or sales-based on revenue received from such customers services to any Group Company pursuant to which the applicable Group Company made payments in excess of $100,000 during such time periodthe eleven-month period ended November 30, 2010;
(iii) Contract that obligates any Group Company to provide indemnification or a guarantee (excluding any non-disclosure agreements, data processing agreements, purchase orders other than intercompany guarantees) that could result in payments in excess of $100,000;
(iv) Contract relating to Indebtedness (other than guarantees by way of endorsement or statements of work or invoices entered into negotiable instruments in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiiv) Contract whereby any Group Company has guaranteed or otherwise agreed to cause, insure or become liable or indemnify for, or pledged any of its assets to secure, the performance or payment of, any obligation or other liability of any Person;
(vi) Contract relating to capital expenditures and involving future payments by any Group Company in excess of $100,000 in any individual case or $200,000 in the aggregate;
(vii) Contract under which any Group Company is lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(viii) Contract under which any Group Company is lessor of or permits any third party to hold or operate any tangible property (other than real property), owned or controlled by any Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;
(ix) Contract prohibiting any Group Company from freely engaging in any material business, or containing covenants that is limit or purport to limit the ability of any Group Company to (A) compete in any business or with any Person or in any geographic area, (B) sell, supply, provide or distribute any service or product, (C) hire or solicit Persons for employment, (D) incur or guarantee any Indebtedness or to g▇▇▇▇ ▇ ▇▇▇▇ on the ten assets of any Group Company, or (10E) largest vendors of use or enforce any Group Company IP Rights, including, in each case, any nondisclosure, non-competition, settlement, coexistence, standstill or confidentiality agreements;
(x) collective bargaining agreement or other Contract with any collective bargaining representative or other Contracts with a labor union, labor organization or similar body;
(xi) Contract pursuant to which any Group Company (a) grants a third Person a license to use any Group Company IP Rights (other than standard form software as a service agreements in a form substantially similar to those that the Company and its Subsidiaries during has made available to Parent prior to the fiscal year ended January 31, 2024 date hereof) or (as determined based on cost b) receives a license to use any benefit from any Intellectual Property of goods and services paid to such vendors by the Company during such time period) any third party (excluding any other than licenses for commercially available non-disclosure agreementscustom software or data services available on standard terms or involving annual payments to or from the Group Companies less than $100,000);
(xii) settlement or similar Contract pursuant to which any Group Company is obligated to pay consideration in excess of $150,000 after the date hereof;
(xiii) Contract that relates to any prior (within the past five years) or future disposition or acquisition of properties, data processing agreementsof assets or of any interest in any business enterprise valued in excess of $100,000 by any Group Company, purchase orders or statements any merger or business combination with respect to any Group Company;
(xiv) powers of work or invoices entered into attorney (other than powers of attorney given in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(ivxv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing Contract (A) a covenant or other provision limiting in providing for any material respect the ability of the Company or any Subsidiary of the Group Company to compete be the exclusive provider of any product or engage in any line of business or service to compete with any Person in or that otherwise involves the granting by any geographic area, other than Person to any customary employee non-solicitation or no-hire clauses entered into in the ordinary course Group Company of businessexclusive rights of any kind, (B) “most favored nation”, “exclusivity” providing for any Person to be the exclusive provider of any product or similar provisionsservices to any Group Company or that otherwise involves the granting by any Group Company to any Person of exclusive rights, (C) granting to any Person a right of first refusal or right of first offer or similar right that limits on the ability sale of any part of the Company or business of any of its Subsidiaries to sellGroup Company, transfer, pledge or otherwise dispose of assets, rights or properties or (D) containing a minimum purchaseprovision of the type commonly referred to as “most favored nation” provision for the benefit of a Person other than any Group Company, minimum volumeor (E) pursuant to which any Group Company has agreed to provide services for a fixed price or maximum fee, “earnout” or pursuant to any cap or other contingentprovision that provides for payment other than on an unrestricted “time and materials” basis and pursuant to which any Group Company expects to accrue revenue in excess of $100,000 during any twelve (12) month period after the date hereof;
(xvi) Contract that obligates any Group Company to pay an amount in excess of $200,000 during the twelve (12) month period after the date hereof;
(xvii) dealer, deferred distribution, joint marketing (including any pilot program), development, content provider, destination site or fixed payment obligation merchant Contract involving annual payments to or from the Group Companies in excess of $100,000;
(xviii) joint venture, partnership, strategic alliance, funding or other Contract involving the sharing of profits, losses, costs or liabilities with any Person or any development, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service involving annual payments to or from the Group Companies in excess of $100,000;
(xix) Contract pursuant to which any Group Company has granted or may be obligated to grant in the future, to any Person, a source code license or option or other right to use or acquire source code, including any agreements that provide for source code escrow arrangements, that is owned by any Group Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, Group Companies taken as a whole;
(viiixx) relating to or evidencing indebtedness for borrowed moneysales representative, debt securitiesoriginal equipment manufacturer, warrants value added re-seller, remarketer or other rights to acquire Contract for distribution of products or services of any debt securities, of the Company or any Subsidiary of the CompanyGroup Companies, or any guarantee by the Company products or of its Subsidiaries of the obligations services of any Person (other Person, in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) case pursuant to which the Company or any Subsidiary received licensing revenues for Group Companies paid the fiscal year ended January 31, 2024 counterparty thereto in excess of $1,000,000, other than non-exclusive licenses granted to customers 100,000 in the ordinary course of businesseleven month period ended November 30, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole2010;
(xixxi) that is a license (Contract with any customer or a covenantthird party to provide support or maintenance, consent including for any third-party product, service or other rights in platform involving annual payments to or to use Intellectual Property) of Third Party Rights granted to from the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 Group Companies in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole100,000;
(xiixxii) Contract providing for the use, disclosure or sale of any Personal Information other than customer agreements based on the Company’s standard form;
(xxiii) Contract with any Governmental Entity (a “Government Contract”); and
(xxiv) Contract (including any end-user licenses) with any customer or client of the Group Companies that is a Company Real Property Lease with remaining obligations provides for the payment to the Group Companies in excess of $1,000,000;
200,000 in the twelve (xiii12) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after month period following the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiarieshereof.
(b) Each Contract of the type described above in Section 4.15(aExcept as set forth on Schedule 4.6(b), whether or not set forth each Material Contract is in Section 4.15(a) of the Company Disclosure Schedule, full force and effect and is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the applicable Group Company or the applicable Subsidiary of the Company, as the case may be, and enforceable in accordance with its terms against such Group Company and, to the Knowledge of the Company, each other party thereto, and thereto (B) in full force and effect, except (i) as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Applicable Law laws affecting generally the enforcement of creditors’ rights generally and by subject to general principles of equity equity). Except as set forth on Schedule 4.6(b), neither any Group Company, nor, to the Company’s Knowledge, any of the other parties thereto, is currently in breach in any respect of any of the terms and (ii) as conditions of any Material Contract except where any such breach has not been or would notnot be, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effectmaterial. Neither the Company nor any Subsidiary of the Company hasExcept as set forth on Schedule 4.6(b), and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Group Company has received written any notice of the intention of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty party to terminate any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise exercise any option not to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectrenew thereunder.
Appears in 1 contract
Material Contracts. 3.10.1 Section 3.10.1 of the Disclosure Schedule lists the following Contracts to which an Acquired Company is a party (collectively, the “Material Contracts”):
(a) Except any Contract relating to Indebtedness of any Acquired Company or any Contract under which an Acquired Company has guaranteed the Indebtedness of any other Person, in each case in excess of $75,000, or any Contract relating to the issuance of letters of credit;
(b) any Contract providing for the sale, assignment, lease, license or other disposition of any asset of an Acquired Company with a value in excess of $75,000, except for sales of obsolete assets and purchase and sale orders executed in the Ordinary Course;
(c) any Contract granting a Lien upon any asset of an Acquired Company that requires annual aggregate payments by any Acquired Company in excess of $75,000, other than Permitted Liens;
(d) any partnership, limited liability company or joint venture agreement in which any Acquired Company participates as a partner, member or joint venturer;
(e) any Real Property Lease that involves annual aggregate payments by any Acquired Company in excess of $50,000;
(f) any material sales agency, sales representation, distributorship, broker or franchise Contract that is (i) as filed as exhibits to the Company SEC Documents, not terminable without penalty on 90 days’ notice or less and (ii) requires payment by any Acquired Company in excess of $50,000 per annum;
(g) any Contract that limits, or purports to limit, the ability of any Acquired Company to (i) engage in any aspect of its business; (ii) participate or compete in any line of business, market or geographic area; (iii) freely set prices for this Agreement and its products or services; (iv) solicit potential employees, consultants, contractors or other suppliers or customers; (v) incur or guarantee any Indebtedness or granting a Lien on the assets of such Acquired Company; or (vi) use or enforce any Intellectual Property rights;
(h) any Contract that grants most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights or terms to any Person;
(i) any Contract with a Top Supplier or a Top Customer;
(j) any material Contract granting any license under or assignment of Intellectual Property (i) to any Acquired Company, except for (1) end user licenses with respect to off-the-shelf, shrinkwrap, or clickwrap software applications (including software provided as a service), (2) non-disclosure agreements entered into in connection with the transactions contemplated hereby Ordinary Course by any Acquired Company, and (iii3) for standard Contracts with current and former employees of any Acquired Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of businessOrdinary Course, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiiii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding from any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Acquired Company to compete or engage in any line of business or to compete with any Person in any geographic areathird parties, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, except for (B1) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or Ordinary Course and (C2) non-disclosure agreements entered into in the Ordinary Course by any Acquired Company; or
(k) any Contract (other than purchase and sale orders executed in the Ordinary Course) that is not otherwise material responsive to the any other subclause of this Section 3.10.1 that requires payment by any Acquired Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,00075,000 per annum or in which $125,000 in the aggregate remains to be paid by any Acquired Company under such Contract, and/or (C) that is otherwise material or provides for any Acquired Company to the Company and its Subsidiaries taken as receive any payments in excess of, or any property with a whole;
(xii) that is a Company Real Property Lease with remaining obligations fair market value in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership 75,000 per annum or similar agreement from in which $125,000 in the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries aggregate remains payable to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Acquired Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariessuch Contract.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the 3.10.2 All Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium effect and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or are enforceable against each party thereto in accordance with the aggregate, reasonably be expected to have a Company Material Adverse Effectexpress terms thereof. Neither the Company nor any Subsidiary of the Company has, andAcquired Companies nor, to the Knowledge Seller’s Knowledge, any other party thereto is in breach of the Companyor default under (or, none to Seller’s Knowledge, is alleged to be in breach of the other parties thereto have, violated any provision ofor default under), or committed has provided or failed received any written notice of any intention to perform terminate, any act underMaterial Contract. There does not exist under any Material Contract any violation, and no breach or event of default, or alleged violation, breach or event of default, or event or condition existsthat, which (with after notice or without notice, lapse of time or both) , would constitute a violation, breach or event of or default under, thereunder on the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice part of any of the foregoing. To the Knowledge of the CompanyAcquired Companies, since February 1or, 2021to Seller’s Knowledge, no counterparty to any Material Contract has (A) canceled or otherwise terminatedother party thereto, or threatened result in writing a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Companies have provided to cancel or otherwise to terminateBuyer true, its relationship with the Company or any Subsidiary complete and correct copies of all written Material Contracts (as applicableincluding all modifications, amendments, signatures, exhibits and supplements thereto and waivers thereunder) or and accurate written descriptions of all material terms of all oral Material Contracts (B) decreased materially or threatened to decrease materially or limit materiallyincluding all modifications, the amount of business that any such counterparty presently engages in or presently conducts with the Company amendments, signatures, exhibits and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectsupplements thereto and waivers thereunder).
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to set forth on Section 3.15 of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Letter, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to to, or is bound by by, any of the following (each, a “Company Material Contract:”):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10601(b)(1) of Regulation S-K of the Exchange Act);
(ii) that is with the ten any Contract relating to Indebtedness of any Person (10) largest customers of other than ordinary course arrangements among the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time periodwholly-owned Subsidiaries) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements in excess of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)$25 million;
(iii) any Contract that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge compete in any line of business or otherwise dispose of assets, rights within any geographic area or properties or with any Person (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, than Contracts with such restrictions that is are not material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, conduct of the Company or any Subsidiary business of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole) or (B) contains any material exclusivity, most favored nation or similar provision;
(xiiv) that is a license (any Contract involving future payments, performance of services or a covenant, consent delivery of goods or other rights in materials to or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to by the Company and its Subsidiaries taken as a wholeof an amount or value reasonably expected to exceed $5 million in the aggregate during the twelve (12) month period following the date hereof;
(xiiv) that is any Contract entered into after January 1, 2015 involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (other than equipment or inventory in the ordinary course of business consistent with past practice) or capital stock or other equity interests of another Person for aggregate consideration (in one or a Company Real Property Lease with remaining obligations in excess series of transactions) under such Contract of $1,000,0005 million or more;
(xiiivi) that involves a material joint venture, profit sharing, partnership or similar agreement from which any Contract the Company or any termination of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither ;
(vii) any collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(viii) any Contract with a Governmental Authority or pursuant to which the Company or any of its Subsidiaries provides good or services to any Governmental Authority, other than ordinary course goods or services offered to business, consumer or government customers.
(ix) any joint venture, partnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any agreements or arrangements with respect to wholly owned Subsidiaries of the Company;
(x) Contracts by which the Company or any of its Subsidiaries obtains transmissions or programming for the channel line-up for each of its Cable Systems or its broadcast television stations that they own or operate (whether by antennae, microwave, satellite or otherwise) of video or audio programming or other cable or broadcast distributed information which require annual expenditures by the Company or any of its Subsidiaries in excess of $4 million, including all Contracts with respect to any network affiliation and all related agreements and any agreements related to the retransmission of any broadcast television stations to the extent such Contracts require annual expenditures in excess of $4 million;
(xi) pole attachment Contracts with annual rent payments in excess of $1 million;
(xii) any roaming or similar Contracts; and
(xiii) any Contract that commits the Company or any of its Subsidiaries to enter into any of the foregoing.
(b) As of the date hereof, the Company has made available to Liberty true, correct and complete copies of all Company Material Contracts, including all material amendments, additions, addenda, service orders or other modifications with respect thereto.
(c) Except as set forth or described on Section 3.15(c) of the Company Disclosure Letter, (i) neither the Company nor any Subsidiary of the Company has, andits Subsidiaries nor, to the Knowledge of the Company, none of the any other parties thereto haveparty to a Company Material Contract, violated any provision is in breach or violation of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or in default under, the provisions of any Company Material Contract, except in each case for those violations, acts (ii) with respect to either the Company or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as any of February 1, 2021its Subsidiaries or, to the Knowledge of the Company, neither the any other party to a Company nor Material Contract, no event has occurred or circumstance exists which would result in a breach or violation of, or a default under, any Subsidiary Company Material Contract (in each case, with or without notice or lapse of time or both), and (iii) each Company Material Contract is valid and binding on each of the Company has received written notice and its Subsidiaries, as applicable, and each other party thereto and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of any equity (regardless of whether enforcement is sought in a proceeding at equity or law), and is in full force and effect with respect to each of the foregoing. To Company and its Subsidiaries, as applicable, and to the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries each other thanparty thereto, in the case of each caseof the foregoing, other than as would not be reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Liberty Interactive Corp)
Material Contracts. (a) Except Schedule 4.11 sets forth all Contracts (iexcept purchase orders executed in the Ordinary Course of Business and except for leases and/or subleases for real property) as filed as exhibits to which any of S▇▇▇▇▇▇ Company, the Company SEC DocumentsCompany, Opco and their respective Subsidiaries is a party, or is otherwise bound, or to which any of their respective assets are bound, of the type described below (iicollectively, the “Material Contracts”):
(A) for this Agreement and (a) any option or purchase Contract which involves commitments to purchase by S▇▇▇▇▇▇ Company, the other agreements entered into Company, Opco or their respective Subsidiaries in connection with the transactions contemplated hereby excess of $2,000,000 annually, and (iiib) any agreement for Company Employee Plans, as the lease of the date hereof, neither the Company nor any Subsidiary of the Company is a party personal property to or is bound from any Person providing for payments in excess of $1,000,000 annually, in each case that cannot be terminated on not more than 60 days’ notice without payment by S▇▇▇▇▇▇ Company, the Company, Opco or their respective Subsidiaries of any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)penalty;
(iiB) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders agreement concerning a partnership or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)joint venture;
(iiiC) that is with the ten (10) largest vendors of the Company and its Subsidiaries any agreement entered into during the fiscal year ended January 31five (5) years prior to the date hereof relating to the acquisition or disposition of any business or assets outside the Ordinary Course of Business (whether by merger, 2024 (as determined based on cost sale/purchase of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreementsstock, data processing agreementssale/purchase of assets or otherwise), purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure each case for which future payments are required consideration in excess of $5,000,000;
(viD) Contracts (other than inter-company Contracts between any of the Company, Opco or their respective wholly-owned Subsidiaries) relating to incurrence of Indebtedness or the disposition or acquisition making of any businessloan or advance, equity, or all or substantially all of the assets of any Person for aggregate consideration in each case involving amounts in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations500,000;
(viiE) containing (A) a covenant or other provision limiting in any material respect agreement that restricts the ability of S▇▇▇▇▇▇ Company, the Company Company, Opco or any Subsidiary of the Company their respective Subsidiaries to (i) compete or engage in any line of business or to compete with the Business anywhere in the world, (ii) except further as part of any Person in any geographic area, other than any customary employee non-solicitation or no-temporary hire clauses agreement entered into in the ordinary course Ordinary Course of Business, solicit or retain any customer of the Business to do business, or (Biii) “most favored nation”except further as part of any temporary hire agreement, “exclusivity” consulting agreement or similar provisionsIT services agreement entered into in the Ordinary Course of Business, solicit or hire any person in the Business to become an employee;
(CF) except for agreements entered into in the Ordinary Course of Business, all agreements involving S▇▇▇▇▇▇ Company, the Company, Opco or their respective Subsidiaries and a right Governmental Body;
(G) any agreement with any labor union or association representing any employees of first refusal S▇▇▇▇▇▇ Company, the Company, Opco or right of first offer their respective Subsidiaries or similar right that limits the ability any collective bargaining agreements;
(H) any license, royalty or other agreement (other than engagement letters with consultants or intra-company licenses, royalties or agreements between any of the Company Company, Opco or their respective wholly-owned Subsidiaries) granting rights to S▇▇▇▇▇▇ Company, the Company, Opco or any of its their respective Subsidiaries to sell, transfer, pledge or otherwise dispose the Intellectual Property of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or any other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, Person which involves Intellectual Property that is material to the Company and its Subsidiaries, taken as a wholeconduct of the Business;
(viiiI) relating to or evidencing indebtedness for borrowed moneyany stockholders agreement, debt securitiesregistration rights agreement, warrants voting agreement or other rights similar agreement to acquire which S▇▇▇▇▇▇ Company, the Company, Opco or any debt securitiesof their respective Subsidiaries is subject;
(J) any agreement creating an indemnification obligation of S▇▇▇▇▇▇ Company, the Company, Opco or any of their respective Subsidiaries in an amount in excess of $500,000, other than agreements entered into in the Ordinary Course of Business and other than engagement or advisor agreements entered into in connection with the restructuring of the Company Debtors;
(K) any agreement whereby any of S▇▇▇▇▇▇ Company, the Company, Opco or their respective Subsidiaries provides a warranty with respect to its services rendered or its products sold or leased outside the Ordinary Course of Business;
(L) any Subsidiary license, royalty or other agreement (other than intra-company licenses, royalties or agreements between any of the Company, Opco or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its their respective wholly-owned Subsidiaries or between or among Subsidiaries) granting rights to any wholly-owned Subsidiaries of the Company);
(ix) Person under any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basisowned or claimed by S▇▇▇▇▇▇ Company, (B) pursuant to which the Company Company, Opco or any Subsidiary received of their respective Subsidiaries which involves (i) the exclusive licensing revenues for of such Company Intellectual Property; or (ii) payment to the Company, Opco or any of their respective Subsidiaries during fiscal year ended January 31, 2024 2008 in excess of $1,000,000, other than non-exclusive licenses granted to customers in 250,000 for the ordinary course terms of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholesuch agreement;
(xiM) that is a license (any dealer incentive or a covenanthospitality agreement which, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to over the Company or any Subsidiary term of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that contract involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions payment (other than ordinary course confidentiality requirements or restrictions);
(xvvolume related payments) any stockholders’ agreementby S▇▇▇▇▇▇ Company, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, Opco or their respective Subsidiaries, as the case may be, in excess of $500,000; and
(N) any other Contract (other than engagement or advisor agreements entered into in connection with the restructuring of the Debtors or inter-company Contracts between any of Opco or its wholly-owned Subsidiaries) the performance of which involves payment or rebates by S▇▇▇▇▇▇ Company, to the Knowledge of the Company, Opco or their respective Subsidiaries of consideration in excess of $1,000,000 during fiscal year 2008 and which cannot be terminated on not more than 60 days’ notice without payment by S▇▇▇▇▇▇ Company, the Company, Opco or their respective Subsidiaries without penalty. The Company has made available to the Purchaser Entities a correct and complete copy of each other party theretowritten Material Contract and a summary of the terms of each oral Material Contract. Each Material Contract is valid, binding and (B) enforceable in full force and effectall material respects by S▇▇▇▇▇▇ Company, the Company, Opco or their respective Subsidiaries, as applicable, except (i) as to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Applicable Law laws affecting creditors’ rights generally and by subject, as to enforceability, to general principles of equity equity, including principles of commercial reasonableness, good faith and fair dealing where applicable (ii) as would not, individually regardless of whether enforcement is sought in a proceeding at law or in the aggregate, reasonably be expected to have a Company Material Adverse Effectequity). Neither the Company nor any Subsidiary of the Company has, and, to To the Knowledge of the Company, none of S▇▇▇▇▇▇ Company, the Company, Opco and their respective Subsidiaries, as applicable, is in breach or default in any material respect under any Material Contract, and, other parties thereto havethan with respect to the Bankruptcy Case and the transactions contemplated by the Plan, violated any provision of, or committed or failed to perform any act under, and no event has occurred which with notice or condition exists, which (with or without notice, lapse of time or both) both would constitute a breach of or default underin any material respect thereunder by S▇▇▇▇▇▇ Company, the provisions of any Material ContractCompany, except Opco or their respective Subsidiaries, as applicable, or permit termination, cancellation, material modification, or acceleration by the other party thereto, other than in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have as a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge result of the Company, neither insolvency or financial condition of any Debtor or the Company nor any Subsidiary commencement of the Company has received written notice of any of the foregoingBankruptcy Case. To the Knowledge of the Company, since February 1no event has occurred or circumstance exists that contravenes, 2021conflicts with, no or results in a violation or breach by any counterparty or third party of, or gives S▇▇▇▇▇▇ Company, the Company, Opco or their respective Subsidiaries the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to terminate, cancel, or materially modify, any Material Contract. None of S▇▇▇▇▇▇ Company, the Company, Opco and their respective Subsidiaries has received in the twelve months prior to the date hereof any written notice in accordance with the terms of any Material Contract has (A) canceled of termination or otherwise terminated, or threatened in writing default from any other party to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Sources: Plan Sponsor Agreement (Simmons Co)
Material Contracts. (a) Except for Contracts that are terminable by any Company upon sixty (i60) as filed as exhibits to the Company SEC Documentsdays’ notice or less without penalty, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as Section 4.10 of the date hereofSeller Disclosure Letter is a complete, neither the Company nor any Subsidiary accurate, and current list of the following Contracts to which any Company is a party to or is otherwise bound by any and which is in effect as of the Effective Date or as of the Closing Date (each, a “Material Contract:”):
(i) that is a “material contract” Any Contract providing for aggregate annual payments to or by any Company in excess of Five Hundred Thousand Dollars (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act$500,000);.
(ii) Any Contract that grants to any Person the right to occupy any portion of the Real Property (other than such Contracts for hotel, meeting and banquet rooms entered into in the Ordinary Course).
(iii) Any Contract related to the sale, lease, or use of gaming equipment having a value in excess of Five Hundred Thousand Dollars ($500,000).
(iv) Any Contract that prohibits any Company from competing in any geographical area, market or line of business.
(v) All partnership agreements, limited liability company agreements and joint venture agreements relating to any Company or the Business.
(vi) Any Contract with a Governmental Body.
(vii) Any Contract that is with the ten (10A) largest customers a license to any Company of the Intellectual Property and requires annual payments in excess of Five Hundred Thousand Dollars ($500,000), other than commercially available software products under standard end-user, “shrink wrap,” “click-to-accept” or similar object code license agreements, or (B) a license by any Company and its Subsidiaries during the fiscal year ended January 31of any Intellectual Property, 2024 (as determined based on revenue received from such customers during such time period) (excluding other than any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into exclusive licenses granted in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;.
(viii) relating Any Contract pursuant to which any Company has created, incurred, assumed or evidencing indebtedness guaranteed Indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, money in excess of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person Five Hundred Thousand Dollars (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company$500,000);.
(ix) any hedging, swap, derivative, or similar Any employment Contract;.
(x) that is a license (or a covenantAny Contract with any ▇▇▇▇ Party, consent or other rights in or to use Intellectual Property) granted by the Company any of its Affiliates, or any Subsidiary Person in which any ▇▇▇▇ Party or its Affiliates own five percent (5%) or more of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;Capital Stock.
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Any Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;Collective Bargaining Agreement,
(xii) that is a Company Real Property Lease with remaining obligations in excess Any Contract involving the design, development, licensing, or operation of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which an online gaming business for the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesCompanies.
(b) Each Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on upon the Company or the applicable Subsidiary of the Company, as the case may be, that is party thereto (and, to the Knowledge of the CompanySeller’s Knowledge, each upon all other party parties thereto), in accordance with its terms and (B) is in full force and effect. There is no, except (i) as may be limited and since January 1, 2015 there has been no, breach or violation of or default by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor that is a party thereto or, to Seller’s Knowledge, by any Subsidiary other party, under any of the Company hasMaterial Contracts in any material respect, andwhether or not such breach, violation or default has been waived. No event has occurred with respect to the Companies or, to the Knowledge of the CompanySeller’s Knowledge, none of the any other parties thereto haveparty, violated any provision ofwhich, with notice or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) , would constitute a breach of material breach, violation or default of, or give rise to a right of termination, modification, or acceleration under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoingMaterial Contracts. To the Knowledge Seller has made available to Purchaser copies of the Companyall Material Contracts, since February 1which copies are true, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened correct and complete in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectall material respects.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as Section 2.11 of the date hereof, neither Seller Disclosure Schedule sets forth a complete list of each of the Company nor any Subsidiary of following Contracts to which (x) the Company is a party to or by which it is bound by any or (y) to the extent relating to the business of the Company, the Seller or one of its Affiliates (other than the Company) is a party (each, a “Material Contract:”) (other than Benefit Plans):
(i) each Contract that is contains a “material contract” put, call, right of first refusal, right of first offer or similar right pursuant to which the Company could be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets (as such term is defined in Item 601(b)(10including cryptocurrency) or business of Regulation S-K of the Exchange Act)any Person;
(ii) each Contract containing covenants that is with restrict the ten (10) largest customers right of the Company and its Subsidiaries during the fiscal year ended January 31to: (A) engage in any business activity, 2024 (as determined based on revenue received from such customers during such time periodB) engage in any line of business or compete with any Person, or (excluding C) conduct any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into activity in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)any geographic area;
(iii) that is with each Contract granting any third party the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31exclusive right to develop, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreementsmarket, data processing agreements, purchase orders sell or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by distribute the Company)’s products or services;
(iv) that is a Government Contractall Contracts between or among the Company on the one hand and the Seller or any of the Debtors or any of the current employees on the other hand;
(v) evidencing all Contracts with a capital expenditure for which future customer or vendor of the Company involving payments are required or expected payments to the Company of more than $100,000 in excess either of $5,000,000the fiscal years ended December 31, 2022, or ending December 31, 2023;
(vi) any Contract relating to the disposition or acquisition of any business, equityequity interest, or all or substantially all of the assets of any Person entity or, except for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or inventory and other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into tangible property acquired in the ordinary course of business, (B) assets having a fair market value in excess of $250,000 or under which the Company has any remaining material obligation with respect to an “most favored nation”, “exclusivityearn-out,” contingent purchase price or similar provisions, contingent payment obligation;
(Cvii) a right each Contract creating indebtedness for borrowed money in excess of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole$200,000;
(viii) relating to each Contract creating or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire granting a material Lien on any debt securities, of the Company or any Subsidiary assets of the Company, or any guarantee by other than purchase money security interests in connection with the Company or acquisition of its Subsidiaries equipment in the ordinary course of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)business consistent with past practice;
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property each (A) on an exclusive basis, (B) Contract pursuant to which the Company or the Seller or any Subsidiary received licensing revenues of the other Debtors is granted any license, covenant not to sue or other rights to use any Intellectual Property or data used or held for use in, or otherwise necessary for, the fiscal year ended January 31business of the Company, 2024 other than non-exclusive licenses to off-the-shelf, commercially available, non-customized Software in excess of $1,000,000object code form, and (B) Outbound Intellectual Property License, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or business consistent with past practice to customers or end-users for their use of the Company’s products and services;
(Cx) each Contract involving any resolution or settlement of any actual or threatened Action that is otherwise material to the Company and its Subsidiaries taken as a wholebusiness of the Company, or that imposes material injunctive or other non-monetary obligations on the Company, including any restrictions on the Company’s use, licensing or registration of any material Intellectual Property, including co-existence agreements;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if each Contract pursuant to which any material technology or material Intellectual Property has been developed for, with or on behalf of the Company or any Subsidiary made payments during Company, other than agreements with employees of the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeCompany;
(xii) that is a Company Real Property Lease each material service Contract related to the operation of the DCM, the DCO and the SEF including (A) agreements with remaining obligations in excess vendors for information technology services and (B) agreements with respect to custody of $1,000,000;customer or member property; and
(xiii) that involves a material joint ventureany agreements with the NFA, profit sharingin its capacity as regulatory service provider, partnership or similar agreement from which the Company or and any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) agreements with any Governmental Authority entered into since February 1, 2021, (y) which would require other Self-Regulatory Organization in connection with the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities operation of the Company or any of its Subsidiaries or relating to dispositionDCM, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company DCO and its wholly-owned SubsidiariesSEF.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither , each Material Contract is valid, binding and enforceable against the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, preferential transfer, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the other parties thereto have, violated any provision “Equitable Exception”). There is no breach or violation of, or committed default under, any such Material Contract by the Company or failed to perform any act underthe Seller as applicable, and no event or condition existshas occurred that, which (with or without notice, the lapse of time or the giving of notice or both) , would constitute a breach of default thereunder by the Company or default underthe Seller as applicable, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults whichexcept as would not, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Interest Purchase Agreement (Miami International Holdings, Inc.)
Material Contracts. (a) Except (iSection 5.14(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Schedule lists, as of the date hereof, neither any Contract to which the Company nor or any Subsidiary of the Company is a party to or is bound by that meets any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that following criteria and is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or not an agreement solely between or among any wholly-owned Subsidiaries of the Company or the Company and any one or more wholly-owned Subsidiaries of the Company (each such Contract, including any such Contract entered into after the date of this Agreement, a “Material Contract”):
(i) requires expenditures by the Company or any of its Subsidiaries in excess of $150,000 per annum and is not terminable by such party upon notice of sixty (60) days or less without penalty;
(ii) provides for required aggregate payments to be received by the Company or any of its Subsidiaries in excess of $150,000 per annum and is not terminable by such party upon notice of sixty (60) days or less without penalty;
(iii) relates to (A) the incurrence by the Company or any of its Subsidiaries of any Indebtedness for borrowed money, other than any such Contract relating to Indebtedness for borrowed money which does not exceed $150,000 outstanding or (B) the creation of any Encumbrance (other than Permitted Encumbrances) on any material asset of the Company or any of its Subsidiaries;
(iv) provides for the acquisition or disposition by the Company or any of its Subsidiaries outside the ordinary course of business of any material assets or any material business (whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise) to the extent any actual or contingent obligations of the Company or any of its Subsidiaries thereunder in excess of $250,000 individually remain in effect;
(v) materially restricts or limits the Company’s ability, or the ability of any of its current or future Affiliates (including, after consummation of the Transaction, any Affiliates of Parent or Purchaser), to freely engage in any business, compete with other entities, market any product, solicit customers or solicit or hire employees, or provides for “exclusivity”, “most favored nation” status or any similar requirement, in each case in favor of any Person other than the Company or any of its Subsidiaries;
(vi) contains guarantees made or supported by the Company or any of its Subsidiaries that are not terminable by the Company or its Subsidiaries upon notice of sixty (60) days or less without penalty;
(vii) is a collective bargaining agreement;
(viii) is an agreement pursuant to which licenses under, or rights to use, material Intellectual Property are granted to or from the Company or any of its Subsidiaries, other than (1) “shrink wrap” or “click through” licenses or other licenses of generally available computer software, hardware or databases, (2) computer software that is pre-installed as a standard part of hardware purchased by the Company or any of its Subsidiaries, in each case of clauses (1) and (2), having annual license, maintenance, support and other fees of less than $150,000 in the aggregate for all such related Contracts, and (3) standard form licenses granted to customers by the Company or its Subsidiaries in the ordinary course of business consistent with past practice;
(ix) relates to any hedgingpartnership, swapjoint venture, derivative, strategic alliance or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise arrangement material to the Company and its Subsidiaries (taken as a whole);
(x) is or would be required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601 of Regulation S-K under the Securities Act;
(xi) that is a license (grants any rights of first refusal or a covenantrights of first negotiation or rights of first offer to any Person with respect to the sale, consent transfer or other rights in or to use Intellectual Property) disposition of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company any business or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess line of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities business of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to (B) any equity securities Subsidiary of the Company;
(xii) hedge, derivative or other similar instrument with an obligation on a marked-to-market basis in excess of $100,000, in the aggregate;
(xiii) any Contract with any Governmental Authority under which payments in excess of $150,000 were received by the Company or any of and its SubsidiariesSubsidiaries in the most recently completed fiscal year; or
(xvixiv) is with contains an affiliate or other Person that would be required obligation to be disclosed under Item 404 enter into any of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesforegoing.
(b) Each With respect to each Material Contract, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) such Material Contract of the type described above is in Section 4.15(a), whether or not set forth in Section 4.15(a) full force and effect and is a valid and binding obligation of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Companyits Subsidiaries, as the case may beapplicable, and, to the Knowledge of the Company, each other party or parties thereto, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, (ii) neither the Company nor any Subsidiary of the Company, as applicable, is, and, to the Knowledge of the Company, no other party thereto is, in default or breach (with or without notice or lapse of time, or both) of such Material Contract and (Biii) to the Knowledge of the Company, no event has occurred that constitutes or would constitute a default or breach (with or without notice or lapse of time, or both) under such Material Contract, except, with respect to the foregoing clauses (i), (ii) and (iii), where such failures to be valid and binding, in full force and effecteffect or enforceable and such defaults or breaches have not had and would not, except individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Parent, as of the date of this Agreement, copies of (including all amendments or modifications to) all Material Contracts.
(d) With respect to each Material Contract between or among the Company or any of its Subsidiaries and a Governmental Authority: (i) since March 31, 2012, all representations and certificates by the Company or any of its Subsidiaries executed, acknowledged or set forth in such Contract were complete and correct in all material respects as may be limited by bankruptcyof the effective date thereof, insolvencyand the Company and its Subsidiaries have complied in all material respects with all such representations and certifications, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) to the Company’s Knowledge, neither the Company, any of its Subsidiaries, nor any of their respective directors, officers or employees, since March 31, 2012, has been or is now under administrative, civil, or criminal investigation, or indictment or audit by any Governmental Authority nor has any such investigation or audit been threatened, (iii) there exist no outstanding written claims against the Company or its Subsidiaries by any Governmental Authority arising under or relating to any such Contract and (iv) no termination for convenience, termination for default, stop work order, cure notice or show cause notice is in effect pertaining to any such Contract except, with respect to the foregoing clauses (i)–(iv), as have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to To the Knowledge of the Company, neither the Company nor any Subsidiary of its Subsidiaries nor any of their respective directors, officers, or employees has (x) since March 31, 2012, been suspended or debarred from doing business with any Governmental Authority, no such suspension or debarment has been threatened or initiated and the consummation of the Transactions by the Company has received written notice will not result in any such suspension or debarment of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) of its Subsidiaries or (By) decreased materially has any Contracts which require it to obtain or threatened to decrease materially or limit materially, the amount of business that maintain a security clearance with any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectGovernmental Authority.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to set forth in the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereofReports or Schedule 4.13, neither the Company nor any Subsidiary of the Company Subsidiaries is a party to or is bound by any Contractby:
(i) that is a “any "material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange ActSEC);
(ii) that is with any contract or agreement for the ten (10) largest customers purchase of materials or personal property from any supplier or for the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements furnishing of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable services to the Company or its Subsidiaries);
(iii) any Subsidiary that involves or is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid likely to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which involve future aggregate payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its the Subsidiaries outside of the ordinary course of business pursuant to which the Company $5 million or its Subsidiaries have material continuing obligationsmore;
(viiiii) containing any contract or agreement for the sale, license or lease (Aas lessor) a covenant or other provision limiting in any material respect the ability of by the Company or any Subsidiary of services, materials, products, supplies or other assets, owned or leased by the Company or the Subsidiaries, that involves or is likely to compete or engage in any line of business or involve future aggregate payments to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its the Subsidiaries to sellof $5 million or more, transfer, pledge other than any contract or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of agreement between the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as (A) a wholewholly-owned Subsidiary or (B) ▇▇▇▇▇ International Liability Management Company;
(viiiiv) any contract, agreement or instrument relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, money of the Company or any Subsidiary in the amount of the Company$200,000 or more, other than any contract, agreement or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans instrument between the Company and any of its (A) a wholly-owned Subsidiary or (B) ▇▇▇▇▇ International Liability Management Company;
(v) any non-competition agreement or any other agreement or obligation which purports to limit in any material respect the manner in which, or the localities in which, any material business of the Company or the Subsidiaries may be conducted;
(vi) any agreement with any present or between or among any wholly-owned Subsidiaries former affiliates of the Company);
(vii) any voting or other agreement governing how any Shares shall be voted;
(viii) any agreement with any stockholders of the Company; or
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent contract or other rights in agreement which would prohibit or to use Intellectual Property) granted materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement or the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant Stock Option Agreement. The foregoing contracts and agreements to which the Company or any Subsidiary received licensing revenues for are parties or are bound are collectively referred to herein as "Company Material Contracts."
(b) Each Company Material Contract is valid and binding on the fiscal year ended January 31Company (or, 2024 to the extent a Subsidiary is a party, such Subsidiary) and is in excess of $1,000,000full force and effect, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to and the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or each Subsidiary have performed all obligations required to be performed by them to date under each Company Material Contract and each other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant contract and agreement to which the Company or any Subsidiary made payments during is party or bound (collectively, the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a"Other Contracts"), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults whichwhere such noncompliance, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect andor is otherwise disclosed in the SEC Reports. Neither the Company nor any Subsidiary knows of, as of February 1or has given or received notice of, 2021any violation or default under (nor, to the Knowledge knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would result in such a violation or default under) any Company Material Contract or Other Contract, except where such violations or defaults, individually or in the aggregate, would not have a Material Adverse Effect, or is otherwise disclosed in the SEC Reports.
(c) Except as disclosed in the SEC Reports or in Schedule 4.13 or as expressly provided for in this Agreement, neither the Company nor any Subsidiary of the Subsidiaries is a party to any (i) employment or consulting agreement (A) with any employee of or consultant to the Company has received written or any Domestic Subsidiary that cannot be terminated on ninety (90) days or less notice or (B) with any employee of or consultant to any Subsidiary other than a Domestic Subsidiary (a "Foreign Subsidiary") that cannot be terminated on one year's or less notice and provides for annual payment of $200,000 or more, (ii) agreement with any officer of the Company, any Domestic Subsidiary, or the knowledge of the Company, any Foreign Subsidiary, the benefits of which are contingent or vest, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company or any Subsidiaries of the nature contemplated by this Agreement or the Company Stock Option Agreement, (iii) agreement with respect to any officer of the Company, any Domestic Subsidiaries or, to the knowledge of the Company, any Foreign Subsidiary providing any term of employment or compensation guarantee or (iv) stock or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the foregoing. To transactions contemplated by this Agreement or the Knowledge Company Stock Option Agreement or the value of any of the Company, since February 1, 2021, no counterparty to benefits of which will be calculated on the basis of any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effecttransactions.
Appears in 1 contract
Sources: Merger Agreement (Burns International Services Corp)
Material Contracts. (a) Except (iSchedule 2.17(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is Disclosure Letter (specifying the appropriate paragraph) sets forth a party to or is bound by any Contractlist of all currently effective Contracts of the Company in the following categories:
(i) that is a “material contract” each Contract under which the Company has:
(as such term is defined A) created, incurred, assumed or guaranteed Company Debt or created any security interest pursuant to any borrowing; or
(B) an obligation to make an investment in Item 601(b)(10) of Regulation S-K of the Exchange Act)or loan to any Person;
(ii) that is with each Contract for the ten (10) largest customers of purchase by the Company and its Subsidiaries during the fiscal year ended January 31of goods or services involving total annual payments in excess of $100,000, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts than for purchases pursuant to which revenue is paid or payable to the Company or its Subsidiaries)purchase orders;
(iii) that is with each Contract for the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors sale by the Company during such time period) (excluding any non-disclosure agreementsof goods or services involving total annual revenues in excess of $100,000, data processing agreements, purchase orders or statements other than for the sale of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts products pursuant to which cost of goods and services is paid or payable by the Company)purchase orders;
(iv) that is a Government Contracteach Contract restricting or limiting, or purporting to restrict or limit, the freedom of the Company, or any of their respective Affiliates (including, after the Closing Date, Acquirer or any of its Affiliates) right to (A) engage or compete in any line of business or operations in any geographic area or during any period of time, (B) solicit or engage any customer, vendor or service provider, or (C) beneficially own any assets, properties or rights, anywhere at any time;
(v) evidencing a capital expenditure for which future payments are required each lease of personal property or other Contract affecting the ownership of, leasing of, or other interest in, personal property of value in excess of $5,000,000100,000;
(vi) each Contract relating to capital expenditures or improvements in excess of $100,000 in the aggregate;
(vii) each material Company IP Agreement;
(viii) each Contract obligating the Company to pay royalties, license fees or similar payments involving amounts in excess of $100,000 in any consecutive twelve (12) month period ending prior to the date hereof or reasonably expected to obligate the Company to make such payments involving amounts in excess of $100,000 in in the calendar year that includes the Closing Date;
(ix) each collective bargaining agreement or Contract with any labor union;
(x) each Contract relating to the disposition or acquisition of any business, equity, or all or substantially all of the material assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting interest in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in enterprise outside the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (each Contract with any dealer, distribution, joint marketing, joint venture, partnership, strategic alliance, Affiliate or a covenant, consent development agreement or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeoutsourcing arrangement;
(xii) each Contract that is contains a Company Real Property Lease with remaining obligations right of first refusal, first offer, first negotiation, take or pay, exclusivity, minimum purchase commitments, or “most favored nation” provision in excess favor of $1,000,000any Person;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or each Contract with any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;Governmental Entity; and
(xiv) each Contract that is contains a settlement, conciliation change of control provision or similar provision that gives the counterparty the right to terminate or modify such Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities as a result of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariestransactions contemplated by this Agreement.
(b) Each Contract of the type described above in Section 4.15(a), whether or not Except as set forth in Section 4.15(aSchedule 2.17(b) of the Company Disclosure ScheduleLetter:
(i) The Company has delivered or made available to Acquirer true and complete copies of each Contract listed in Schedule 2.17(a) of the Company Disclosure Letter (each, is referred to herein as a “Material Contract.” Except for ”);
(ii) Each Material Contracts that have expired or terminated by their terms, all of the Material Contracts are Contract is:
(A) a valid and binding on obligation of the Company or Company; and
(B) to the applicable Subsidiary knowledge of the Company, as the case may be, and, to the Knowledge a valid and binding obligation of the Company, each other party thereto, ;
(iii) The Company is in material compliance with and (B) is not in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually material breach or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision material violation of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or in material default under, or received notice that it has materially breached, materially violated or materially defaulted under, any of the provisions terms or conditions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021nor, to the Knowledge of the Company’s knowledge, neither is any party obligated to the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty pursuant to any Material Contract has (Asubject to any material breach, material violation or material default thereunder, except as set forth in Schedule 2.17(b) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with of the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectDisclosure Letter.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Vaccitech PLC)
Material Contracts. (a) Except (iSection 3.16(a) as filed as exhibits to of the Company SEC Documents, Disclosure Schedule lists the following types of contracts and agreements (iiexcluding any Plans disclosed on Section 3.10(a) for this Agreement and of the other agreements entered into in connection with Company Disclosure Schedule) to which the transactions contemplated hereby and (iii) for Company Employee Plans, or any Company Subsidiary is a party as of the date hereof, neither the Company nor any Subsidiary hereof (such contracts and agreements as are required to be set forth in Section 3.16(a) of the Company is a party to or is bound by any Contract:Disclosure Schedule being the “Material Contracts”):
(i) that each contract and agreement (individually or together with related contracts or agreements) which is a “material contract” (as such term is defined reasonably likely to involve consideration paid or payable to or by the Company or any Company Subsidiary of more than $500,000, in Item 601(b)(10) of Regulation S-K of the Exchange Act)aggregate, over the the twelve month period following the date hereof;
(ii) that is each contract and agreement (individually or together with related contracts or agreements) with the top ten (10) largest customers (based on revenue or expenditure) with each customer and supplier;
(iii) all contracts and agreements evidencing indebtedness for borrowed money;
(iv) all equity-based partnership, joint venture or similar agreement;
(v) all contracts that involve the acquisition or disposition, directly or indirectly (by merger or otherwise), of tangible assets (other than in the ordinary course of business) or capital stock or other equity interests of another person;
(vi) all contracts and agreements with any Governmental Authority to which the Company or any Company Subsidiary is a party;
(vii) all contracts and agreements that limit, or purport to limit, the ability of the Company and its or any Company Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(viii) all material contracts or arrangements that result in any person or entity holding a power of attorney from the Company or any Company Subsidiary that relates to the Company, any Company Subsidiary or their respective businesses; and
(ix) all material contracts under which the Company or any of the Company Subsidiaries during is a licensee or has received the fiscal year ended January 31right to use any Intellectual Property from a third person, 2024 (as determined based on revenue received from such customers during such time period) (excluding any nonother than licenses for commercially available, off-disclosure agreementsthe-shelf Software, data processing agreements, or services or purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts business that are ancillary to Contracts pursuant to which revenue is paid required individual or payable to the Company aggregate payments or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess consideration of $5,000,000;
100,000 or less during any twelve (vi12) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesmonth period.
(b) Each Material Contract of the type described above in Section 4.15(a)is a legal, whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on obligation of the Company or the applicable Subsidiary Company Subsidiaries and, to the knowledge of the Company, as the case may be, and, to the Knowledge of the Company, each other party parties thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Company Subsidiary of is in material breach or violation of, or default under, any Material Contract nor has any Material Contract been canceled by the Company has received written notice of any of the foregoingother party thereto. To the Knowledge of the Company, since February 1, 2021’s knowledge, no counterparty to other party is in material breach or violation of, or default under, any Material Contract. The Company and the Company Subsidiaries have not received any written claim of material default under any Material Contract which has (A) canceled not been resolved. The Company has furnished or otherwise terminatedmade available to Ithax true and complete copies of all Material Contracts, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or including any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectall amendments thereto.
Appears in 1 contract
Sources: Business Combination Agreement (ITHAX Acquisition Corp.)
Material Contracts. (a) Except (iSection 3.17(a) as filed as exhibits to of the Disclosure Schedule lists, under separate headings, each of the following contracts and agreements of ▇▇▇▇▇▇ Development, the Company SEC Documents, and ▇▇▇▇▇▇ UA that are in effect (ii) for this Agreement such contracts and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:being “Material Contracts”):
(i) all management contracts and contracts with independent contractors or consultants (or similar arrangements) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)are not cancelable without penalty or further payment and without more than 30 days’ notice;
(ii) all leases with respect to the Leased Real Property;
(iii) all contracts and agreements that is (A) limit or purport to limit the ability of ▇▇▇▇▇▇ Development, the Company or ▇▇▇▇▇▇ USA to compete in any line of business or with any Person or in any geographic area or during any period of time, (B) creates or purports to create any exclusive relationship or arrangements, (C) grants any Person an option or a first-refusal, first-offer or similar preferential right, or (D) contains most-favored nations pricing or other most-favored nations terms;
(iv) all transportation agreements, services agreements and other agreements which have unexpired terms in excess of one year;
(v) all Personal Property Leases having an annual Liability in excess of $25,000;
(vi) all Related Party Agreements that are not terminated as of the Closing;
(vii) any contract or indenture relating to (A) Indebtedness, (B) placing any Encumbrance (other than Permitted Encumbrances) on any portion of the Assets, or (C) any guaranty of any obligation for borrowed money or other material guaranty;
(viii) any contract relating to the acquisition of assets (other than in the ordinary course of business) or any merger, purchase of stock or other acquisition of any share capital of any business enterprise or material assets or equity interests of any other Person;
(ix) any joint venture or partnership contract pursuant to which ▇▇▇▇▇▇ Development, the Company or ▇▇▇▇▇▇ USA holds any securities or other Equity Rights in another Person;
(x) any contract or group of related contracts with the ten (10) largest customers same party for the purchase of tangible products or services that provide for annual payments by ▇▇▇▇▇▇ Development, the Company and its Subsidiaries during the fiscal year ended January 31, 2024 or ▇▇▇▇▇▇ USA in excess of $25,000;
(as determined based on revenue received from such customers during such time periodxi) any contract with (excluding A) Major Customer or (B) Major Supplier;
(xii) any non-disclosure agreements, data processing agreements, purchase orders contract with a Governmental Authority (other than license agreements or statements of work or invoices Permits entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiixiii) any contract under which ▇▇▇▇▇▇ Development, the Company or ▇▇▇▇▇▇ USA has advanced or loaned any amount to any other Person;
(xiv) any guaranty of any obligation for borrowed money or other guaranty of any obligation;
(xv) any contract that involves commitments to make capital expenditures or which provide for the purchase of goods or services from any one Person under which the annual expenditures or the undelivered balance of such products or services has a purchase price in excess of $25,000;
(xvi) any contract relating to any settlement of any litigation that (A) was pending against ▇▇▇▇▇▇ Development, the Company or ▇▇▇▇▇▇ USA at any time during the last five years, or (B) that is with contains continuing, outstanding or ongoing commitments;
(xvii) any contract relating to the ten (10) largest vendors sale of any of the Company and its Subsidiaries during the fiscal year ended January 31Assets, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into other than in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(ivxviii) Contracts (A) continuing over a period of more than one year from the date thereof or (B) with any agents, distributors or representatives, in each case that is a Government Contractare not terminable without penalty on 60 days’ notice or less;
(vxix) evidencing a capital expenditure for (A) employment agreements with key or executive employees or which future payments are required deviate in excess of $5,000,000any material respect from the Company’s standard employment agreement as made available to the Purchaser or (B) collective bargaining contracts or contracts with any labor organization, union or association;
(vixx) contracts providing for (A) accelerated vesting, material modification or the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (B) retention, severance (beyond statutory severance), change in control or other similar payments;
(xxi) any contract relating to the disposition or acquisition licensing of IP Rights by any business, equity, or all or substantially all member of the assets ▇▇▇▇▇▇ Group to a third party or by a third party to any member of any Person for aggregate the ▇▇▇▇▇▇ Group, in each case involving consideration in excess of $5,000,000 by the Company or 25,000 per annum, and all other agreements affecting any of its Subsidiaries outside member of the ordinary course of business pursuant ▇▇▇▇▇▇ Group’s ability to which the Company use, commercially exploit or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in disclose any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its SubsidiariesIP Rights, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property than (A) on an exclusive basislicenses for commercially available, general purpose, non-customized computer software used by any member of the ▇▇▇▇▇▇ Group and having a license or subscription fee of less than $5,000 per annum or (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to license agreements entered into by any member of the ▇▇▇▇▇▇ Group with customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xixxii) all contracts providing for (A) indemnification (including with respect to IP Rights, employees and directors) or (B) any guaranty of third party obligations, in each case entered into outside the ordinary course of business; and
(xxiii) any contract not otherwise specified above that is a license (involves an annual commitment or a covenantannual payment to or from ▇▇▇▇▇▇ Development, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration ▇▇▇▇▇▇ USA of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries25,000 individually.
(b) Each Contract of the type described above Except as disclosed in Section 4.15(a), whether or not set forth in Section 4.15(a3.17(b) of the Company Disclosure Schedule, each Material Contract (i) is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on ▇▇▇▇▇▇ Development, the Company or the applicable Subsidiary of the Company▇▇▇▇▇▇ USA, as the case may beapplicable, and, to the Knowledge of the CompanySeller, each other party the counterparties thereto, and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) upon consummation of the transactions contemplated by this Agreement, except to the extent that any consents set forth in Section 3.03(c) of the Disclosure Schedule are not obtained, shall continue in full force and effect without penalty or other adverse consequence, and (iii) is not the subject of any pending, or to the Knowledge of the Seller, threatened, dispute. Except as would notdisclosed in Section 3.17(b) of the Disclosure Schedule, individually or in the aggregateneither ▇▇▇▇▇▇ Development, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has▇▇▇▇▇▇ USA, andnor, to the Knowledge of the CompanySeller, none any of the other parties thereto havethereto, violated any provision is in material breach of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or material default under, the provisions of any Material ContractContract to which it is a party (nor does there exist any condition that, except in each case for those violationsupon the passage of time, acts (the giving of notice or failures to act) and defaults which, individually or in the aggregateboth, would not reasonably be expected to have cause such a Company Material Adverse Effect andviolation or default by the Company, as of February 1▇▇▇▇▇▇ USA, 2021or, to the Knowledge of the CompanySeller’s Knowledge, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectparty thereto).
Appears in 1 contract
Material Contracts. (a) Except as listed in Schedule 3.17, none of PFMI, the Company or any of its Subsidiaries is a party to, or bound by, any written or legally binding oral: (i) as filed as exhibits contract, agreement or commitment that (A) has a duration of twelve months or more or (B) requires either party thereto to pay, to the Company SEC Documentsother, $250,000 or more annually; (ii) distribution, marketing, dealer, representative or sales agency agreement, contract or commitment; (iii) lease under which PFMI, the Company or any of the Subsidiaries is the lessor or permits any third party to hold or operate any property, real or personal, owned or controlled by PFMI, the Company or any Subsidiary; (iv) note, debenture, bond, equipment trust agreement, letter of credit agreement, loan agreement or other contract or commitment for this Agreement the borrowing or lending of money or agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other Person or other Indebtedness (except for certain immaterial items which in the aggregate do not exceed One Hundred Thousand Dollars ($100,000)); (v) agreement relating to the ownership of or investments in any Person (including investments in joint ventures and minority equity investments); (vi) agreement under which PFMI, the Company or any Subsidiary is a lessee of or holds or operates any personal property owned by any other Person for which the annual rental exceeds $100,000; (vii) agreement relating to the licensing of Intellectual Property by PFMI, the Company or any Subsidiary to another Person or by any Person to PFMI, the Company or any Subsidiary or any other agreement affecting PFMI's, the Company's or any Subsidiary's ability to use or disclose any Company Intellectual Property (other than licenses of off-the-shelf software for an aggregate purchase price of less than $10,000), and all other agreements affecting PFMI's, the Company's or any Subsidiary's ability to use or disclose any Intellectual Property; (viii) nondisclosure or confidentiality agreement, except for agreements entered into during the past ninety (90) days with other potential bidders in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as possible sale of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company Shares and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices other agreements entered into in the ordinary course of business; (ix) contracts with any labor union or any bonus, and pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar Contracts that are ancillary plan or practice, whether formal or informal, or any severance agreement or arrangement; (x) agreements for the employment of any individual on a full time, part-time, consulting, or other basis providing annual compensation in excess of $100,000; (xi) agreement, contract or commitment whereby it has agreed to Contracts pursuant to which revenue is paid or payable to the Company or indemnify any other Person, except for contracts with its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices customers entered into in the ordinary course of business; or (xii) agreement, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid contract or payable by commitment limiting or restraining PFMI, the Company);
(iv) that is , a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition Subsidiary, an Affiliate of any business, equity, of them or all or substantially all of an employee (other than noncompetition agreements between an employee and the assets Company) of any Person for aggregate consideration of them or any of their businesses or successors from engaging or competing in excess any manner or in any business. With respect to each agreement required to be listed in Schedule 3.17, (a) none of $5,000,000 by PFMI, the Company or any of its the Subsidiaries outside of the ordinary course of business pursuant to which the Company are in breach or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting default in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, andnor, to the Knowledge of the CompanyShareholders, each other party theretois any counterparty thereto in material breach or default of such agreement or has any event occurred which, with notice or lapse of time, would constitute a material breach or default, or permit termination, modification, or acceleration under the agreement) under any such agreement; (b) PFMI, the Company and the Subsidiaries have performed in all material respects all of their respective obligations required to be performed by them to date under all such agreements, (c) the agreement is legal, valid, binding, enforceable, and (B) in full force and effect, except (i) as such may be limited by bankruptcy, insolvency, moratorium and reorganization, or other similar Applicable Law Laws affecting creditors’ ' rights generally generally, and by general principles equitable principles; (d) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms immediately following the consummation of equity the transactions contemplated by this Agreement, provided that any consents necessary to undertake such transactions are obtained prior thereto, except as such may be limited by bankruptcy, insolvency, reorganization, or other similar Laws affecting creditors' rights generally, and by general equitable principles; and (iie) as would notto Shareholders' Knowledge, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor no other party has repudiated any Subsidiary provision of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectagreement.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as As of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractby:
(i) any Contract that is would reasonably be expected to result in aggregate payments by or to the Company and its Subsidiaries in excess of
(A) $3,000,000 in the current or any future calendar year or
(B) $5,000,000 in the aggregate;
(ii) any Contract under which the Company or any of its Subsidiaries leases, subleases or licenses any real property (as lessor or lessee) involving annual rental payments in excess of $500,000;
(iii) any Contract relating to indebtedness for borrowed money, any guarantees thereof or the granting of Liens over the property or assets of the Company or any of its Subsidiaries, in each case, other than Contracts solely among the Company and its wholly owned Subsidiaries;
(iv) any Contract relating to any loan or other extension of credit (other than trade credits and accounts receivable in the ordinary course of business consistent with past practice) made by the Company or any of its Subsidiaries in excess of $200,000;
(v) each acquisition or divestiture Contract contemplating future payments (including the maximum amount of any “earn-out” or other contingent payment obligations) by or to the Company and its Subsidiaries in excess of $200,000 in the aggregate;
(vi) any partnership, joint venture or similar agreement;
(vii) any stockholders’, investors rights’, registration rights or similar agreement or arrangement;
(viii) any Contract (A) relating to the employment of, or the performance of services by, any Key Employee, (B) the terms of which obligate or may in the future obligate the Company or any of its Subsidiaries to make any severance, termination or similar payment to any current or former Service Provider in excess of $100,000 in the aggregate or (C) pursuant to which the Company or any of its Subsidiaries may be obligated to make any bonus or similar payment in excess of $100,000 to any current or former Service Provider;
(ix) any Collective Bargaining Agreement;
(x) any Contract with any (A) present or former officer or director the Company or any of its Subsidiaries, (B) beneficial owner (as defined in Rule 13d-3 under the 1▇▇▇ ▇▇▇) 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 1▇▇▇ ▇▇▇) of any such officer, director, or beneficial owner;
(xi) any Contract (A) with any sole-source suppliers of material tangible products or services or (B) that includes (x) any material “most favored nations” terms and conditions (including, without limitation, with respect to pricing), (y) any material exclusive dealing or (z) any minimum purchase arrangement (in the case of clause (z), in excess of $3,000,000 over any 12-month period);
(xii) any Contract (x) that grants any material right of first refusal or first offer to any Person or, (y) that limits or restricts in any material respect the ability of the Company or any of its Subsidiaries (or, after the Effective Time, the Surviving Corporation or any of its Subsidiaries or that purports to so limit or restrict Parent or any of its Subsidiaries) to (A) sell any products or services of or to any other Person or in any geographic region, or (B) engage or compete in any line of business, (C) obtain products or services from any Person or (D) own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(xiii) any Contract that relates to any swap, forward, futures, warrant, option or other derivative transaction;
(xiv) any Contract which contains any material license, right or immunity (including a covenant not to be sued or right to enforce or prosecute any Intellectual Property Rights) with respect to any Intellectual Property Right, excluding (A) licenses granted to the Company or any of its Subsidiaries for non-customized commercial off-the-shelf computer software that are generally available on nondiscriminatory pricing terms and (B) non-exclusive licenses granted by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice which do not contain (x) the transfer or assignment of any Intellectual Property Rights or (y) any material restriction or condition on the Company’s or any of its Subsidiaries’ use or exploitation of any Intellectual Property Rights;
(xv) any other Contract which would prohibit or materially delay the consummation of the Merger or any other transaction contemplated by this Agreement; or
(xvi) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(iiSEC) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, Employee Plan (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability all Contracts of the Company or any of its Subsidiaries type described in this Section 4.20(a) being referred to sell, transfer, pledge or otherwise dispose of assets, rights or properties or herein as “Material Contracts” (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excludingwhich, for the avoidance of doubt, intercompany loans between include any Contract entered into after the date hereof that would be a Material Contract if it had been entered into as of the date hereof)).
(b) The Company has prior to the date of this Agreement made available to Parent a true and complete copy of each Material Contract (including all amendments, modifications, extensions and renewals thereto and waivers thereunder) entered into as of the date hereof. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid, binding and in full force and effect and, to the knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms (in each case, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity) and (ii) neither the Company nor any of its Subsidiaries, nor, to the 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 provisions of such Material Contract, or would give to any Third Party any right of termination, amendment or cancellation of such Material Contract or create an additional license thereunder, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company and any each of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries and, to the knowledge of the Company);
(ix) any hedging, swapeach current or former Service Provider, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights and has been in or compliance with all Applicable Law with respect to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) each Contract pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31provides services or has provided services directly (through prime contracts or orders under schedule agreements, 2024;
grants or cooperative agreements or otherwise) or indirectly (xivthrough subcontracts or as a vendor, sub-recipient, sub-grantee under grants, cooperative agreements or otherwise) that is a settlement, conciliation or similar Contract (x) with to any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Government Contract.” Except for Material Contracts that have expired ”) and has not been suspended or terminated by their termsdebarred from doing, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Companydeemed ineligible to do, as the case may bebusiness with a Governmental Authority, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge knowledge of the Company, since February 1March 31, 20212011, there has been no counterparty Proceeding by any Governmental Authority with respect to any Material Contract has (A) canceled alleged irregularity, misstatement, omission or otherwise terminated, or threatened in writing breach relating to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectGovernment Contract.
Appears in 1 contract
Material Contracts. (aExcept as expressly disclosed in Section 1(h) Except (i) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansPerfection Certificate, as of the date hereof, neither the Company nor any Subsidiary of the Company Closing Date no Loan Party is (a) a party to any contract which has had or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not could reasonably be expected to have a Material Adverse EffectEffect or (b) in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (x) any contract to which it is a party or by which any of its assets or properties is bound, which default, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or result in liabilities in excess of $200,000 or (y) any Material Contract. Except for the contracts and other agreements listed in Section 1(h) of the Perfection Certificate, no Loan Party is party, as of the Closing Date, to any (i) collective bargaining, works council, shop, enterprise or recognition agreement or other Contract with any Union, (ii) any employment agreement, (iii) contract relating to (A) Indebtedness, (B) the PPP Loan or (C) the mortgaging, pledging or otherwise placing of an Lien (other than Permitted Liens) on any Loan Party’s assets, (iv) lease or agreement under which it is the lessee of, or holds or operates any personal property owned by any other party, or lease or agreement under which it is the lessor of or permits any third party to hold or operate any Loan Party property, real or personal, (v) contract, other than purchase orders entered into in the Ordinary Course of Business, (A) with the twenty-five (25) customers and twenty-five (25) suppliers/vendors of the Loan Parties that have purchased from or sold to, as applicable, the Loan Parties the most products or services (based upon consideration received/paid by the Loan Parties) since January 1, 2019, (B) for the purchase or sale of materials, supplies, merchandise, equipment, parts or other property or services with other customers or suppliers requiring aggregate future payments in excess of $10,000, or (C) any guaranty of any obligation described in clauses (A) and (B), (vi) contract for capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Loan Parties, the performance of which involves unpaid commitments or liabilities in excess of $50,000, (vii) contract (A) for the acquisition (by merger or otherwise) of any business or securities of another Person or all or substantially all of the of the assets of another Person or (B) for the disposition of the assets or of any business enterprise of any Loan Party other than dispositions of inventory and products of the Loan Parties in the Ordinary Course of Business, in each case that is the source of any surviving rights, obligations or other provisions, (viii) license, sublicense, consent to use agreement, settlement, coexistence agreement, covenants not to ▇▇▇, permission or other contract pursuant to which a Loan Party grants rights to any third party or receives a grant of rights from any third party to use any Intellectual Property material to the operation of the business of a Loan Party, other than agreements relating to off-the-shelf commercially available software available for an annual or one time license fee of less than $10,000 in the aggregate, (ix) contract that requires a Loan Party to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions, (x) material broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or advertising contract, (xi) contract with any Governmental Authority, (xii) contract that limits the ability of a Loan Party to compete in any line of business or with any Person or in any geographic area or during any period of time, (xiii) contract that provides for any joint venture, partnership or similar arrangement by the Company; or any other contract involving aggregate consideration in excess of $50,000 and which, in each case, cannot be cancelled by the Loan Party without penalty or without more than 90 days’ notice. (each such contract and agreement, described in the preceding clauses (i) to (xiii), a "Material Contract"). Each Material Contract listed on Schedule 7.18 is in full force and effect (except to the extent terminated after the Closing Date) and there are no events of defaults thereunder or any event which with notice or passage of time, or both, would constitute a material event of default thereunder.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as As of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company is and its Subsidiaries are not a party to or is bound by any Contract:
(i) that is 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 Exchange Act)SEC;
(ii) that is or creates a Partnership with the ten (10) largest customers of any other Person that is material to the Company and its Subsidiaries, taken as a whole, or that relates to the formation, operation, management or control of any such Partnership;
(iii) that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases) in excess of $1,500,000 (other than agreements between the Company and any wholly owned Subsidiary or between wholly owned Subsidiaries) or pursuant to which the Company or any of its Subsidiaries during guarantees any such indebtedness of any other Person (other than the fiscal year ended January 31Company or another wholly owned Subsidiary), 2024 (B) materially restricts the Company’s 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 determined based on revenue received from such customers during such time perioda whole, or (D) (excluding any non-disclosure agreementsis an interest rate derivative, data processing agreements, purchase orders currency derivative or statements of work or invoices other hedging contract other than foreign currency cash flow ▇▇▇▇▇▇ entered into in the ordinary course of business, business and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (classified as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)cash flow ▇▇▇▇▇▇ for accounting purposes;
(iv) that is a Government ContractContract (other than this Agreement) for the acquisition of any corporation, partnership or limited liability company or business, or sale of any of its Subsidiaries or businesses after the date hereof, in each case with a fair market value or purchase price (including assumption of debt) in excess of $5,000,000 (other than (x) in the ordinary course of business or (y) intercompany agreements);
(v) evidencing that is a capital expenditure Contract (including any Contract providing for the outsourcing, contract manufacturing, testing, assembly or fabrication (as applicable of any products, technology or services of the Company or any of its Subsidiaries)) under which future the Company and its Subsidiaries have made or received payments are required in excess of $5,000,0001,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(vi) relating that is a dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for the disposition or acquisition of any business, equity, or all or substantially all Company Products (A) with a third party that is one of the assets of any Person for aggregate consideration Company’s top twenty (20) customers by revenue in fiscal year 2014 or 2015 or (B) under which the Company and its Subsidiaries have made or received payments in excess of $5,000,000 1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(vii) with respect to the acquisition or disposition of any corporation, partnership, limited liability company or business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of capital stock, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries outside has (A) material continuing indemnification obligations (and was entered into after March 1, 2005), or (B) any “earn-out” or similar contingent payment obligations in excess of $5,000,000 (other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligationscourse);
(viiviii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) that contains a right of first refusal refusal, first offer, or right of first offer negotiation, or similar right that limits the ability of the Company a call or put right, with respect to any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, asset that is material to the Company and its Subsidiaries, taken as a whole;
(viiiix) relating to that prohibits or evidencing indebtedness for borrowed money, debt securities, warrants restricts the payment of dividends or other rights to acquire any debt securities, of the Company or any Subsidiary distributions in respect of the Company, ’s shares or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contractcapital stock;
(x) that is a license (purchase or a covenant, consent sale agreement with any Significant Customer or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to Significant Supplier under which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholehave made or received payments in excess of $1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015;
(xi) that is a license under which (or a covenant, consent or A) any person (other rights in or to use Intellectual Property) of Third Party Rights granted to than the Company or any Subsidiary of the Company (Aits wholly owned Subsidiaries) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which is guaranteeing any liabilities or obligations of the Company or any Subsidiary made payments during the fiscal year ended January 31of its Subsidiaries, 2024 in excess of $1,000,000, and/or or (CB) that is otherwise material to the Company and or any of its Subsidiaries taken as a wholehas “take-or-pay” obligations;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which between the Company or any of its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ respective directors or officers or stockholders who own five percent (5%) or more of the Company Common Stock, other than (A) any Benefit Plan or any other employee agreements or arrangements, (B) transactions conducted on an arms’ length basis or (C) any agreements with consideration of less than $200,000;
(xiii) providing for the creation or imposition of any Lien, other than a Permitted Lien, with respect to any assets (including Intellectual Property or other intangible assets) material to the conduct of the business of the Company and its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31as currently conducted, 2024taken as a whole;
(xiv) that is a settlement, conciliation or similar Contract agreement (x) with any Governmental Authority entered into since February 1Entity which (A) materially restricts or imposes material obligations upon the Company or its Subsidiaries, 2021or (B) materially disrupts the business of the Company and its Subsidiaries as currently conducted, or (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 2,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);Agreement; or
(xv) with any stockholders’ agreementGovernmental Entity, proxyor for the purpose of fulfilling a Contract or order from any Governmental Entity as the ultimate customer, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating that is material to any equity securities the conduct of the Company or any business of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
Subsidiaries as currently conducted, taken as a whole. Each such Contract described in clauses (bi)-(xv) Each Contract of the type described above in or Section 4.15(a4.8(c), whether or not set forth in Section 4.15(a) of the together with each material Company Disclosure ScheduleLicense-In Agreement, is referred to herein as a “Material Contract”.”
(b) Except for as would not reasonably be expected to have, individually or in the aggregate, a Company Material Contracts that have expired or terminated by their termsAdverse Effect, all of the (i) each Material Contracts are (A) valid and binding on Contract is enforceable against the Company or the applicable Subsidiary of the Company, as the case may be, in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity effect and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of or its Subsidiaries, on the Company hasone hand, and, to the Knowledge of the Company, none of the each other parties thereto have, violated any provision of, or committed or failed party to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any each Material Contract, except in each case for those violationson the other hand, acts (or failures have performed all obligations required to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company performed by it under such Material Adverse Effect Contract and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of the Company has received written notice of any of the foregoing. To the Knowledge of the Companytime) will, since February 1or would reasonably be expected to, 2021, no counterparty to any Material Contract has (A) canceled constitute such a violation or otherwise terminatedbreach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract, or threatened in writing (C) give any Person the right to cancel cancel, terminate or otherwise modify any Material Contract.
(c) As of the date of this Agreement, the Company is not a party to terminate, its relationship with or bound by any Contract that (i) contains any provisions materially restricting the right of the Company or any Subsidiary of its Subsidiaries (as applicableA) to compete or transact in any business or with any Person or in any geographic area, or (B) decreased materially to acquire any material product or threatened other asset or service from any other Person; (ii) grants exclusive rights to decrease materially license, market, sell or limit materially, deliver any Company Product; or (iii) contains any “most favored nation” or similar provisions in favor of the amount of business that any such counterparty presently engages in other party and relates (or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectrelate) to payments in excess of $1,000,000 in any of fiscal years 2014, 2015 or 2016.
Appears in 1 contract
Material Contracts. (ab) Except (iSection 2.13(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party Disclosure Schedule sets forth an accurate and complete list (arranged in paragraphs corresponding to or is bound by any Contract:
the numbered paragraphs contained in this Section 2.13(a)) of the following Contracts (i) that is each such Contract required to be set forth, a “material contract” (as such term is defined in Item 601(b)(10Material Contract”) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party:
(i) all customer Contracts, including, without limitation, all license, development, maintenance, support and professional services Contracts, that (i) provides for the payment to the Company or any Company Subsidiary of $50,000 or more following the date of this Agreement, or (ii) that deviates from the customary form of the Company ▇▇▇▇ or customary Maintenance Agreement;
(ii) all Contracts under which the Company or any Company Subsidiary is obligated to provide any maintenance, support or professional services with respect to any Company Products that are no longer marketed by the Company or any Company Subsidiary;
(iii) all Contracts with suppliers and service providers of the Company or any Company Subsidiary that involve the performance of services for, or delivery of goods or materials to, the Company or any Company Subsidiary under which the Company or any Company Subsidiary is obligated to make payments of more than $50,000 following the date of this Agreement, excluding Contracts with any employees and independent contractors engaged on a full-time basis;
(iv) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the ordinary course of business pursuant business) or advance to which (other than travel and entertainment advances to the Employees extended in the ordinary course of business), or investment in, any Person or any Contract relating to the making of any such loan, advance or investment;
(v) all Contracts involving Company Indebtedness or granting or evidencing a Lien on any property or asset of the Company or any of its Subsidiaries have material continuing obligationsSubsidiaries;
(vi) all Contracts under which any Person (other than the Company) has directly or indirectly guaranteed Company Indebtedness;
(vii) containing all Contracts with any Governmental Entity;
(viii) all Contracts involving the lease of real property (“Lease Agreements”);
(ix) all Contracts for the lease of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving the payment of more than $15,000 over the term of the Contract;
(x) all financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(xi) all Contracts (A) a covenant limiting or other provision limiting in any material respect purporting to limit the ability of the Company or any Subsidiary of the Company its Subsidiaries to compete or engage in any line of business or to compete with any Person or in any geographic geographical area, (B) granting or purporting to grant any exclusive rights to any Person or limiting in any respect the right of the Company or any Company Subsidiary to make use of any Company Intellectual Property, including any "covenant not to ▇▇▇" clauses, (C) containing any exclusive licensing obligations, (D) containing any future royalty payments, or (E) containing any “most favored nation” or “most favored customer” terms;
(xii) other than employment Contracts, all Contracts between the Company and any customary employee non-solicitation of its Subsidiaries on the one hand and any stockholder, officer, director, Affiliate of the Company, any Company Subsidiary or no-hire clauses entered into any family member thereof on the other hand;
(xiii) all Contracts (including letters of intent) relating to or involving the disposition or acquisition of assets, properties, capital stock or other equity interests of any other Person, or any merger, consolidation or similar business combination transaction, whether or not enforceable, but excluding the purchase of assets in the ordinary course of businessbusiness for less than $25,000;
(xiv) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement or joint development;
(Bxv) “most favored nation”all Contracts with distributors or representatives of the Company or any Company Subsidiary that have generated or expected to generate annual revenues in excess of $50,000 (excluding Contracts with Employees and independent contractors engaged on a full time basis, “exclusivity” in sales on behalf of the Company or similar provisionsany Subsidiary);
(xvi) all Contracts involving any resolution or settlement of any actual or threatened litigation or arbitration in the past two (2) years;
(xvii) all Collective Bargaining Agreements;
(xviii) all Contracts to which the Company or any Company Subsidiary is a party or by which it is bound and under which the Company or any Company Subsidiary is granted or provided any rights, or permitted any uses, of Intellectual Property or Intellectual Property Rights by a third party, other than: (Ci) Contracts for licenses to Shrink-Wrapped Code that are not royalty bearing; and (ii) Open Source Licenses or CopyLeft Software licenses.
(xix) all Contracts (i) containing a right of first refusal or right of first offer or similar right that limits the ability of grant by the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose a Person of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) any right relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of under the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted grant to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues of any right relating to or under the Intellectual Property or Intellectual Property Rights of any Person involving anticipated annual gross revenue or expense in excess of $1,000,000 during 20,000, other than agreements with customers for the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority sale and/or licensing of Products entered into since February 1, 2021, in the ordinary course of business (yincluding Contracts for “off-the-shelf” software) which would require and (ii) regarding development of Intellectual Property or Technology for the Company or any of its Subsidiaries to pay consideration in excess of more than $1,000,000 after the date of this Agreement or 5,000; and
(zxx) that subjects the Company or All Contracts containing any of its Subsidiaries provisions which are triggered by, and all Contracts entitling any Person to any material ongoing requirements right of notice, novation, waiver, authorization, consent or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Companyapproval, as the case may be, andin connection with, to the Knowledge a change-in-control of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Company Subsidiary (as applicable) or (B) decreased materially the consummation of the transactions contemplated by this Agreement. For the purpose of this subsection, "Change-in-Control" shall not include any notice, novation, waiver, authorization, consent or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each caseapproval, as would not reasonably be expected the case may be, required solely in the event of assignment of the applicable Contract to have a Material Adverse Effectthird party unless the provision includes assignment by "operation of law" or similar wording.
Appears in 1 contract
Sources: Merger Agreement (Attunity LTD)
Material Contracts. (a) Except (iHoldco is not party to any Contract that would constitute a Material Contract except as set forth in Section 3.09(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither Disclosure Schedules. Section 3.09(a) of the Company nor any Subsidiary Disclosure Schedules lists each of the following Contracts of the Company is a party to (such Contracts, together with all Contracts concerning the occupancy, management or is bound by operation of any Contract:Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.10(b) of the Disclosure Schedules and all Company IP Agreements set forth in Section 3.12(b) of the Disclosure Schedules, being “Material Contracts”):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers each Contract of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for involving aggregate consideration in excess of $5,000,000 100,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than ninety (90) days’ notice;
(ii) all Contracts that require the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions, in each case the value over the life of its Subsidiaries outside the Contract is in excess of $100,000;
(iii) all Contracts that provide for the indemnification by the Company of any Person or the assumption of any Tax, environmental or other Liability of any Person, in each case other than Contracts (i) entered in the ordinary course of business pursuant consistent with past practice and that do not provide indemnification by the Company or assumption of Liabilities for an unlimited amount or (ii) with potential liability for an amount less than $100,000;
(iv) all Contracts that relate to the acquisition or disposition of any business or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $100,000, or any stock of any other Person;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company is a party;
(vi) all employment agreements and Contracts with independent contractors or its Subsidiaries have consultants (or similar arrangements) to which the Company is a party and which involve annual payments in excess of $100,000 and which are not cancellable without material continuing obligationspenalty or without more than ninety (90) days’ notice;
(vii) containing except for Contracts relating to trade receivables, all Contracts relating to Indebtedness of the Company;
(Aviii) all Contracts with any Governmental Authority to which the Company is a covenant party (“Government Contracts”);
(ix) all Contracts that limit or other provision limiting in any material respect purport to limit the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person or in any geographic areaarea or during any period of time;
(x) any Contracts to which the Company is a party that provide for any joint venture, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” partnership or similar provisions, arrangement by the Company;
(Cxi) a right of first refusal all Contracts between or right of first offer or similar right that limits the ability of among the Company on the one hand and Seller or any Affiliate of its Subsidiaries any Seller Party on the other hand;
(xii) all collective bargaining agreements or Contracts with any Union to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of which the Company and its Subsidiaries, in each case, is a party; and
(xiii) any other Contract that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) not previously disclosed pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesSection 3.09.
(b) Each Material Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, and each Contract to which Holdco is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) party is valid and binding on the Company or the applicable Subsidiary of the CompanyHoldco, as the case may beapplicable, and, to the Knowledge of the Company, each other party thereto, in accordance with its terms and (B) is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in subject to the aggregate, reasonably be expected to have a Company Material Adverse EffectEnforceability Exception. Neither the Company nor any Subsidiary None of the Company has, andor Holdco or, to the Knowledge Seller’s Knowledge, any other party thereto is in breach of the Company, none or default under (or is alleged to be in breach of the other parties thereto have, violated any provision ofor default under), or committed has provided or failed received any notice of any intention to perform terminate, any act under, and no Material Contract or any Contract to which Holdco is a party. No event or condition existscircumstance has occurred that, which (with notice or without notice, lapse of time or both) , would constitute a breach an event of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to under any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary Contract to which Holdco is a party or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract and each Contract to which Holdco is a party (as applicableincluding all modifications, amendments and supplements thereto and waivers thereunder) or (B) decreased materially or threatened have been made available to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as Section 5.15 of the date hereof, neither the Company nor any Subsidiary Sellers’ Disclosure Schedule sets forth all of the Company is following Contracts to which the Sellers are a party to or is by which the Sellers are bound and that are related to, used in or held for use in the Business or by any Contract:which the Purchased Assets may be bound or affected (collectively, the “Material Contracts”):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)▇▇▇ Agreements;
(ii) that is Contracts with the ten (10) largest customers any current or former officer, director, stockholder or Affiliate of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)Sellers;
(iii) that is with Contracts for the ten (10) largest vendors sale of any of the Company and assets of the Sellers or for the grant to any person of any preferential rights to purchase any of its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)assets;
(iv) that is a Government ContractContracts for joint ventures, strategic alliances or partnerships;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all Contracts containing covenants of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company Sellers not to compete or engage in any line of business or to compete with any Person in any geographic geographical area or covenants of any other Person not to compete with the Sellers in any line of business or in any geographical area;
(vi) Contracts relating to the acquisition by the Sellers of any operating business or the capital stock of any other Person;
(vii) Contracts relating to the incurrence, other than assumption or guarantee of any customary employee non-solicitation Indebtedness or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) imposing a right of first refusal or right of first offer or similar right that limits the ability of the Company or Lien on any of its Subsidiaries to sell, transfer, pledge assets exceeding $10,000 individually or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of $25,000 in the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a wholeaggregate;
(viii) relating Contracts under which the Sellers have made advances or loans to or evidencing indebtedness for borrowed money, debt securities, warrants or any other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)Person;
(ix) Contracts providing for severance, retention, change in control or other similar payments to any hedging, swap, derivative, or similar ContractBusiness Employee;
(x) that is Contracts for the employment of any individual on a license (full-time, part-time or a covenant, consent consulting or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (Contracts for the provision of goods or a covenantservices, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or including any Subsidiary of the Company (A) on an exclusive basissystem operator agreements, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company support center services agreement and its Subsidiaries taken as a wholeMDU sub provider agreements;
(xii) that is a Company Real Property Lease with remaining obligations Contracts (or group of related contracts) which involve the expenditure of more than $10,000 annually or $25,000 in excess of $1,000,000the aggregate or require performance by any party more than one year from the date hereof;
(xiii) any Intellectual Property Licenses other than licenses to computer software that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024are commercially available;
(xiv) that is a settlementall non-disclosure, conciliation confidentiality, or similar Contract non-solicitation agreements between (xA) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or Sellers and any of its Subsidiaries to pay consideration of more than $1,000,000 after current or former employees, consultants or agents, and (B) the date of this Agreement or (z) that subjects the Company or Sellers and any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);Person; and
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating Contracts that are otherwise material to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesBusiness.
(b) Each Material Contract of is in full force and effect and is the type described above in Section 4.15(a)legal, whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or obligation of the applicable Subsidiary of the CompanySeller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as the case may beto enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). No Seller is in material default under any Material Contract, and, to the Knowledge of the CompanySellers, each no other party theretoto any Material Contract is in material default thereunder. To the Seller’s Knowledge, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (has occurred that with or without notice, the lapse of time or both) the giving of notice or both would constitute a breach of or default under, the provisions of under any Material Contract, except in each case for those violations, acts (or failures . No party to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoingMaterial Contracts has exercised any termination rights with respect thereto. To The Sellers have delivered or otherwise made available to the Knowledge Purchaser true, correct and complete copies of all of the CompanyMaterial Contracts, since February 1together with all amendments, 2021, no counterparty to any Material Contract has (A) canceled modifications or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectsupplements thereto.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansSchedule 3.14 sets forth a list, as of the date hereof, neither the Company nor any Subsidiary of all Contracts of the Company types described in subparagraphs (a)-(n) below to which one or more of the Business Entities is a party or which is used in, or relates to, the Business, in each case pursuant to which the Business Entity or is bound by the counterparty thereto has any continuing obligation (each such contract, a “Material Contract:”):
(ia) Contracts with a term exceeding one year that is a “material contract” (as such term is defined cannot be terminated by the Business Entity without penalty that require aggregate payments by or to the Business Entity in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$250,000;
(iib) Contracts that is with involve the ten lease of real property or that obligate the Business Entity to purchase real property;
(10c) largest customers Contracts that involve the lease of personal property involving or reasonably likely to involve payment obligations over the remaining term of the Company and lease in excess of $250,000;
(d) Contracts limiting the ability of any Business Entity or its Subsidiaries during Affiliates to compete in any line of business, industry or geographic area or with any Person;
(e) Contracts that create a partnership, joint venture, strategic alliance or similar arrangement with respect to the fiscal year ended January 31Business or any Business Entity;
(f) Contracts for the sale of any material amount of assets of the Business other than in the ordinary course of business;
(g) Contracts entered into in the past three years relating to the acquisition (by merger, 2024 purchase of stock or assets or otherwise) by any Business Entity of any operating business or material assets or the capital stock or equity interests of any other Person, under which any of the parties thereto have remaining financial obligations;
(as determined based on revenue received from such customers during such time periodh) (excluding any non-disclosure indentures, credit agreements, data processing loan agreements, purchase orders guarantees, notes or statements other evidences of work or invoices Indebtedness (other than Intercompany Debt and capitalized leases entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiii) Contracts that is with the ten are required pursuant to Section 3.13 to be set forth in Schedule 3.13;
(10j) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 Contracts (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, other than purchase orders accepted or statements confirmed in the ordinary course of work business) with any Key Customer;
(k) Contracts (other than purchase or invoices equipment orders entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)Key Supplier;
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Polypore International, Inc.)
Material Contracts. (a) Except (i) as filed as exhibits to Section 6.1(A)(t)(i) of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Allergan Disclosure Schedule sets forth a list as of the date hereof, neither the Company nor any Subsidiary of this Agreement of each of the Company is a party to or is bound by following Contracts (other than any Contract:
(iAllergan Benefit Plan) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company Allergan or any of its Subsidiaries outside is a party or by which it is bound (each such Contract required to be so listed, and each of the ordinary course following types of business Contracts (other than any Allergan Benefit Plan) described below to which Allergan or any of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of this Agreement, an “Allergan Material Contract”):
(A) each (i) acquisition or divestiture Contract (including any Contracts pursuant to which any member of the Company Allergan Group has transferred or its Subsidiaries have material continuing obligations;
agreed to transfer ownership of any Intellectual Property) and (viiii) containing license (Aincluding any in-license or out-license and any sublicense), collaboration agreement or similar or equivalent Contract, that, in the case of each of clauses (i) and (ii), (x) has a covenant maximum potential value (or which otherwise requires the receipt or making of payments) in excess of $100 million (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other provision limiting in any material respect the ability of the Company contingent payment or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessvalue obligations), (By) “most favored nation”, “exclusivity” or similar provisions, (C) a right involves the issuance of first refusal or right any Equity Securities of first offer or similar right that limits the ability of the Company Allergan or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after following the date of this Agreement or (z) grants to any Person (other than any member of the Allergan Group) any right of first refusal, right of first negotiation, right of first offer, option to purchase, option to license, or any other similar rights with respect to any Allergan Product or any material Intellectual Property of Allergan;
(B) any Contract with any Governmental Entity that subjects is material to Allergan and its Subsidiaries, taken as a whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $100 million;
(C) any Contract that (x) limits or purports to limit, in any material respect, the Company freedom of Allergan or any of its Subsidiaries 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 ongoing requirements respect, the freedom of AbbVie or any of its Affiliates to take such actions after the Effective Time, (y) contains exclusivity or “most favored nation” obligations or restrictions (other than ordinary course confidentiality requirements that restrict or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating purport to any equity securities of the Company restrict Allergan or any of its Subsidiaries in any material respect or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time, (z) contains any other provisions materially restricting or purporting to materially restrict the ability of Allergan or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, test or research any Allergan Products through third parties or that would so limit or purport to limit AbbVie or any of its Affiliates after the Effective Time;
(D) any Contract relating to dispositionthird party indebtedness for borrowed money in excess of $100 million (whether incurred, voting assumed, guaranteed or dividends with respect to secured by any equity securities asset) of the Company Allergan or any of its Subsidiaries; or;
(xviE) is with an affiliate any Contract restricting Allergan or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other Person that would be required similar agreement, which is material to be disclosed under Item 404 the Allergan Group, taken as a whole;
(G) any Contracts or other transactions with any (A) executive officer or director of Regulation S-K Allergan, or (B) affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, other than director or beneficial owner;
(H) any Contract solely among involving the Company and its wholly-owned Subsidiaries.
settlement of any Action or threatened Action (bor series of related Actions) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding which (x) will involve payments by Allergan or any of its Subsidiaries after the date hereof, or involved such payments, in excess of $100 million or (y) will impose, or imposed, materially burdensome monitoring or reporting obligations by Allergan or any of its Subsidiaries outside the ordinary course of business or material restrictions on the Company Allergan or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of Allergan (or, following the Company hasCompletion, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, on AbbVie or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (AAbbVie) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.or
Appears in 1 contract
Sources: Transaction Agreement
Material Contracts. (a) Except (i) as filed as exhibits to Section 3.01(n)(i) of the Company SEC Documents, (ii) for this Agreement and Letter sets forth a list of each of the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plansfollowing Contracts to which, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company or its Subsidiaries is a party or to or is bound by any which its assets are subject (each, a “Material Contract:”):
(iA) that is a each “material contract” (as such term is defined described in Item 601(b)(10) of Regulation S-K of the Exchange ActSEC as determined as of the date of this Agreement, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company;
(iiB) each Contract (1) that is with the ten includes obligations not to (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work that otherwise restricts or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect limits the ability of the Company or any Subsidiary of the Company to its Subsidiaries or affiliates to) compete or engage in any line of business or geographic area or (2) that includes obligations that restrict the ability of the Company or its Subsidiaries or affiliates to compete with any Person conduct business in any geographic area, ;
(C) each Contract (other than any customary employee non-solicitation Company Benefit Plan) providing for or no-hire clauses entered into resulting in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of payments by the Company or any of its Subsidiaries to sellthat exceeded $100,000 in the calendar year ended December 31, transfer2022, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material reasonably likely to the Company and its Subsidiariesrequire, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31remaining term of such Contract, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which annual payments by the Company or any of its Subsidiaries recognized revenues that exceed $100,000;
(D) all Contracts granting to any person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material assets of the Company or its Subsidiaries;
(E) all Contracts (1) for the granting or receiving of a license, sublicense, covenant not to sue or similar right with respect to Company Intellectual Property material to the business of the Company and its Subsidiaries (2) under which any person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in which it is reasonably expected to pay or receive a royalty, license fee, franchise fee or similar payment in excess of $1,000,000 during 100,000, or (3) that materially restricts the fiscal year ended January 31Company’s or its Subsidiaries’ right to use or exploit any Company Owned Intellectual Property, 2024in each case of clause (1) and clause (2), other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software or information technology services that have been granted on standardized, generally available terms;
(xivF) that is a settlementall partnership, conciliation joint venture or other similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company agreements or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)arrangements;
(xvG) any stockholders’ agreementagreement with any director, proxy, voting trust agreement officer or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities stockholder of the Company or any of its Subsidiaries or Subsidiary;
(H) any agreement relating to dispositionindebtedness for borrowed money or the deferred purchase price of any asset or property (in either case, voting whether incurred, assumed, guaranteed or dividends secured by any asset), except any such agreement with respect to an aggregate outstanding principal amount not exceeding $100,000;
(I) any equity securities of agreement for the disposition or acquisition by the Company or any of its Subsidiaries; or
(xvi) is , with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) material obligations of the Company Disclosure Schedule, is referred or its Subsidiaries (other than confidentiality obligations) remaining to herein as a “Material Contract.” Except for Material Contracts that have expired be performed or terminated by their terms, all Liabilities of the Material Contracts are (A) valid and binding on the Company or its Subsidiaries continuing after the applicable Subsidiary date of the Companythis Agreement, as the case may be, and, to the Knowledge of the Company, each any business or any assets other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or than in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount ordinary course of business consistent with past practice;
(J) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other than such restrictions or limitations that are required by applicable Law; and
(K) all agreements with any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectGovernmental Entity.
Appears in 1 contract
Sources: Investment Agreement (SilverSun Technologies, Inc.)
Material Contracts. Section 4.16 of the Disclosure Letter lists, and the Company has made available to Parent and PH Sub true, correct and complete copies of, all contracts, agreements, commitments, arrangements, leases (including with respect to Personal property) and other instruments to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective assets is bound which (a) Except (i) as filed as exhibits to the Company SEC Documentsinvolves or could involve aggregate payments of more than $100,000, (iib) for this Agreement and the other agreements entered into in connection would be required to be filed with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of SEC under Regulation S-K of the Exchange Act);
, (iic) that is with the ten (10) largest customers of or could reasonably be expected to be material to the Company and its Subsidiaries during the fiscal year ended January 31taken as a whole, 2024 (as determined based on revenue received from such customers during such time periodd) (excluding any non-disclosure agreements, data processing agreements, purchase orders restricts or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting limits in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits way the ability of the Company or any of its Subsidiaries to sellconduct business, transfer(e) is a confidentiality or standstill agreement, pledge (f) would prevent or otherwise dispose of assetsimpair the Company’s ability to consummate the Merger, rights (g) that provides for indemnification by the Company or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation any of the Company Company’s Subsidiaries to any Person, (h) that was not negotiated and its Subsidiariesentered into on an arm’s-length basis, in each case, (i) that is could require the disposition of any material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to assets or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, line of business of the Company or any Subsidiary of the Company’s Subsidiaries (or, after the Effective Time, Parent or any guarantee by its affiliates), (j) that grants “most favored nation or customer” status that, following the Company Merger, would apply to Parent or of its Subsidiaries of the obligations of any Person affiliates, (in each case, excluding, for the avoidance of doubt, intercompany loans between including the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company’s Subsidiaries);
, (ix) any hedging, swap, derivative, or similar Contract;
(xk) that is a license (prohibits or a covenant, consent or other rights in or to use Intellectual Property) granted by limits the right of the Company or any Subsidiary of the Company Subsidiaries (or, after the Effective Time, Parent or its affiliates) to Company make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights; (Al) on an exclusive basisthat is between the Company or any of the Company’s Subsidiaries and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares, (Bm) that contains a put, call or similar right pursuant to which the Company or any of the Company’s Subsidiary received licensing revenues for (or, after the fiscal year ended January 31Effective Time, 2024 in excess Parent or its affiliates) could be required to purchase or sell, as applicable, any equity interests of $1,000,000any Person, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xin) that is a license (loan or a covenantcredit agreement, consent mortgage, promissory note, indenture or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which contract evidencing indebtedness for borrowed money by the Company or any of its the Company’s Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31(each, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect”). Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision ofits Subsidiaries is, or committed has received any notice or failed to perform has any act underknowledge that any other party is, in default in any respect under any Material Contract, and no there has not occurred any event or condition exists, which (that with or without notice, the lapse of time or both) the giving of notice or both would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoingsuch default. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Each Material Contract has (A) canceled or otherwise terminatedis valid, or threatened binding and enforceable in writing accordance with its terms and is in full force and effect with respect to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (a Company Subsidiary, as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Material Contracts. Set forth on Schedule 3.8, is a complete list of all of the following Contracts to which Seller is a party or by which it is bound:
(a) Except (i) as filed as exhibits all Contracts relating to the Company SEC Documentsemployment of any person, (ii) for this Agreement and the all bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, phantom stock, retirement, severance benefits retirement, stock appreciation and other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)employee benefit plans;
(iib) all Contracts with Suppliers or otherwise relating to the sale or distribution of inventory or goods or relating to the representation by Seller of Suppliers or manufacturers or distributors;
(c) all Contracts with customers (including all hospitals and medical facilities) that is with the ten (10) largest customers provide for annual payments in excess of the Company $25,000, including any written terms and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, conditions which are included in purchase orders or statements govern or apply to purchases by any customer;
(d) all Contracts relating to capital expenditures;
(e) all guarantees and other contingent liabilities with respect to any indebtedness or obligation of work or invoices entered into any other Person (other than the endorsement of negotiable instruments for collection in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiif) that is with the ten (10) largest vendors of the Company all management services, consulting and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)type Contracts;
(ivg) all leases of personal property that is a Government Contract;
(v) evidencing a capital expenditure provide for which future annual payments are required in excess of $5,000,00010,000;
(vih) relating all Contracts limiting the freedom of Seller to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses Person;
(i) all Contracts not entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viiij) relating to all Contracts which involve the receipt of or evidencing indebtedness for borrowed money, debt securities, warrants expenditure by Seller of more than $25,000 in any one year;
(k) any license agreement (as licensor or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Companylicensee);
(ixl) any hedgingContract with any shareholder, swapmanager, derivativedirector, officer or similar Contract;employee of Seller; and
(xm) that is a license (or a covenant, consent or all other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise Contracts material to the Company and its Subsidiaries taken as a whole;
(xi) that Business or operation of the Purchased Assets. Each Contract set forth on Schedule 3.8 is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding agreement of Seller and, to Seller's Knowledge, of all other parties thereto and is in full force and effect and enforceable in accordance with its terms. Except as set forth on the Company Schedule 3.8, Seller has no written Contracts with Suppliers or the applicable Subsidiary customers. Seller has not violated any of the Company, as terms or conditions of any of the case may beContracts set forth on Schedule 3.8, and, to the Knowledge of the CompanySeller, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary all of the Company hasterms and conditions to be performed by any party thereto other than Seller have been fully performed. Except as set forth on Schedule 3.8, and, to the Knowledge there exists no default or event of default under any of the CompanyContracts set forth on Schedule 3.8 or event, none occurrence, condition or act (including the purchase of the other parties thereto havePurchased Assets hereunder) which, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without the giving of notice, the lapse of time or both) would constitute a breach of or default under, the provisions happening of any Material Contract, except in each case for those violations, acts (other event or failures to act) and defaults which, individually or in the aggregatecondition, would not reasonably be expected to have become a Company Material Adverse Effect and, as default or event of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectdefault thereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Material Contracts. (a) Except (i) Except for (x) Contracts (including all amendments and modifications thereto) as filed as exhibits to set forth in Section 5.1(n)(i) of the Company SEC Documents, Disclosure Schedule or (iiy) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plansany Benefit Plan, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract (a Contract described by clauses (A) through (O) of this Section 5.1(n)(i), being hereinafter referred to as a “Material Contract:”):
(iA) that is reasonably expected to require annual payments to or from the Company and its Subsidiaries of more than $10 million;
(B) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(iiC) that contains any noncompete, nonsolicit or exclusivity provisions to which the Company or any of its Subsidiaries is subject that would, after the Effective Time, restrict the ability of Parent or any of its Subsidiaries (other than Cork or any of its Subsidiaries) to compete in any line of business or geographic area of at least five square miles;
(D) with a Top Supplier;
(E) that, to the Knowledge of the Company, is material to the Specific Business and is not otherwise included in the definition of Material Contract;
(F) that provides for or relates to the formation, creation, operation, management or control of any partnership, limited liability company, joint venture, collaboration or similar arrangement (in each case, other than with respect to wholly owned Subsidiaries of the Company);
(G) that is with the ten an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing Indebtedness of any Person in excess of $1 million except for (10x) largest customers of any Contract solely among or between the Company and any of its wholly owned Subsidiaries during the fiscal year ended January 31or (y) any surety or performance bond, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders letter of credit or statements of work or invoices similar Contract entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iiiH) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) includes a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries that is material to the Company or any of its Subsidiaries, taken as a whole;
(I) that is a Real Property Lease requiring an annual payment in excess of $100,000;
(J) pursuant to which (x) any license, covenant not to ▇▇▇, or other right is granted under any material Intellectual Property Rights exclusively owned by the Company or any of its Subsidiaries, (y) any Person has granted any license, covenant not to ▇▇▇, or other right under any Intellectual Property Rights to the Company or any of its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000their respective businesses, other than (1) non-exclusive licenses for off-the-shelf software that have been granted on standardized, generally available terms, and (2) non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xiK) that is a license (or a covenant, consent or other rights relates to any settlement of any Action in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 amount in excess of $1,000,00050,000 in the aggregate since December 31, and/or (C) that is otherwise material to the Company 2017, other than claims defended and its Subsidiaries taken as a wholesettled by insurance companies;
(xiiL) that is relates to the direct or indirect acquisition or disposition of any corporation, partnership or other business organization or the assets thereof (whether by merger, sale of stock, sale of assets or otherwise) in each case with a Company Real Property Lease with remaining obligations fair market value or purchase price in excess of $1,000,000500,000 entered into since December 31, 2015;
(xiiiM) that involves contains a material joint ventureput, profit sharingcall, partnership right of first refusal, right of first offer or similar agreement from right or obligation or any other obligation pursuant to which the Company or any of its Subsidiaries recognized revenues could be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business reasonably expected to result in payments with a value in excess of $1,000,000 during the fiscal year ended January 31, 2024500,000 in any 12 month period;
(xivN) that is contains a settlement, conciliation currently effective standstill or similar Contract agreement pursuant to which one party has agreed not to acquire assets or securities of the other party or any of its Affiliates; and
(xO) with any Governmental Authority entered into since February 1that prohibits the payment of dividends or distributions in respect of the capital stock, 2021membership interests, (y) which would require partnership interests or other equity interests of the Company or any of its Subsidiaries to pay consideration Subsidiaries, the pledging of more than $1,000,000 after the date of this Agreement capital stock, membership interests, partnership interests or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities interests of the Company or any of its Subsidiaries or relating the incurrence of Indebtedness by the Company or any of its Subsidiaries.
(ii) The Company has made available to dispositionParent prior to the date of this Agreement true, voting correct and complete copies of all written Material Contracts required to be identified in Section 5.1(n)(i) of the Company Disclosure Schedule, including all amendments thereto, as in effect as of the date of this Agreement.
(iii) As of the date of this Agreement, except as has not had, and would not reasonably be expected to have, individually or dividends with respect to any equity securities in the aggregate, a Material Adverse Effect, each Material Contract is a valid and binding agreement of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange ActSubsidiaries party thereto, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on enforceable against the Company or the applicable Subsidiary any of the Company, as the case may be, its Subsidiaries and, to the Knowledge of the Company, each other party theretothereto in accordance with its terms, and (B) is in full force and effect, except subject in each case to the Bankruptcy and Equity Exception (i) and subject to the termination or expiration of any such Material Contract after the date of this Agreement in accordance with its terms, other than as may a result of any breach or default by the Company or any of its Subsidiaries). Except as has not had, and would not reasonably be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notexpected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither , neither the Company nor any Subsidiary of the Company hasits Subsidiaries, and, to the Knowledge of the Company, none as of the date of this Agreement, no other parties thereto haveparty thereto, violated is (or with or without notice or lapse of time would be) in default or breach under the terms of any provision of, or committed or failed to perform any act under, such Material Contract and no event or condition exists, which has occurred (with respect to defaults or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of breaches by any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021other party thereto, to the Knowledge of the Company, neither as of the date of this Agreement) that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract or (C) give any Person the right to cancel, terminate or modify in a manner adverse to the Company nor any Subsidiary Material Contract.
(iv) For the purposes of this Agreement, (A) “Affiliate” means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with a second Person, provided that (x) Parent and its Affiliates shall not be deemed to be Affiliates of the Company has received written notice and Subsidiaries of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and (y) the Company and Subsidiaries of the Company shall not be deemed to be Affiliates of Parent and its Subsidiaries other thanAffiliates, in each case, for any purpose hereunder; and (B) “Indebtedness” shall mean, with respect to any Person, without duplication, as would of the date of determination, (i) all obligations of such Person for borrowed money, including accrued and unpaid interest, and any prepayment fees or penalties, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such Person issued or assumed as the deferred purchase price of property (including any potential future earn-out, purchase price adjustment, release of “holdback” or similar payment, but excluding obligations of such Person incurred in the ordinary course of business), (iv) all lease obligations of such Person capitalized on the books and records of such Person, (v) all Indebtedness of others secured by a Lien on property or assets owned or acquired by such Person, whether or not reasonably be expected the Indebtedness secured thereby have been assumed, (vi) net cash payment obligations of such Person under interest rate, currency, commodity or other derivatives or hedging transactions or similar arrangement (valued at the termination value thereof), (vii) all letters of credit or performance bonds issued for the account of such Person, to have the extent drawn upon, and (viii) all guarantees and keepwell arrangements of such Person of any Indebtedness of any other Person other than a Material Adverse Effectwholly owned Subsidiary of such Person; provided, however, that “Indebtedness” shall not include intercompany indebtedness, obligations, liabilities or undertakings (including any guarantees or arrangements having the economic effect of a guarantee) solely between or among Parent and any of its wholly owned Subsidiaries or solely between or among the Company and any of its wholly owned Subsidiaries (as applicable).
Appears in 1 contract
Material Contracts. (a) Except (iSection 4.9(a) as filed as exhibits to of the Company SEC Documents, (ii) for this Agreement and Disclosure Schedule identifies all of the other agreements entered into Contracts in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, effect as of the date hereof, neither the Company nor hereof to which any Subsidiary of the Acquired Company is a party to or is by which any of the properties or assets of any Acquired Company are bound by (each a “Material Contract” and, collectively, the “Material Contracts”) (excluding any ContractYuba Goldfields Agreements, Benefit Plans and Material Company IP Agreements), and Section 4.9(a) of the Company Disclosure Schedule contains a written summary of the material terms of any oral Contracts, that:
(i) that is a “material contract” (as such term is defined required payments to or from any Acquired Company in Item 601(b)(10) excess of Regulation S$100,000 in the preceding twelve-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31month period, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, other than pursuant to purchase or sales orders or statements of work or invoices entered into made in the ordinary course of business, and other similar Contracts that ;
(ii) are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)made with any Affiliate of any Acquired Company;
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is contain a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing provision (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Acquired Company to compete or engage in any line of business or in any geographic area or to compete with any Person, to market any product or to solicit customers, (B) granting the other party “most favored nation” status or equivalent preferential pricing terms that materially limit the operations or conduct of any Acquired Company’s business, as currently conducted, or (C) granting the other party exclusivity or similar rights that materially limit the operations or conduct of any Acquired Company’s business, as currently conducted;
(iv) relate to the creation, incurrence, assumption or guarantee of Indebtedness for borrowed money in a principal amount in excess of $150,000;
(v) provide for the making of any advance, loan, extension of credit or capital contribution to, or other investment in, a Person, in such case which, individually, is in excess of $150,000;
(vi) provide for a material joint venture, partnership or similar arrangement;
(vii) grant any Person in (other than Buyer and its Affiliates) an option or a first refusal, first offer or similar preferential right to purchase or acquire any geographic areaownership interests in, or material assets of, any Acquired Company;
(viii) are with Significant Customers or Significant Suppliers, other than any customary employee non-solicitation purchase or no-hire clauses entered into sales orders made in the ordinary course of business;
(ix) are a collective bargaining agreement or with any labor organization;
(x) are agreements with any employee, (B) “most favored nation”, “exclusivity” individual independent contractor or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability individual consultant of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its SubsidiariesAcquired Companies, in each case, providing for aggregate payments to any such employee, independent contractor or consultant in excess of $150,000 annually, excluding employment offer letters that is material to set forth the Company terms of at-will employment and its Subsidiaries, taken as a wholedo not contain any severance obligations;
(viiixi) relating relate to the acquisition or evidencing indebtedness for borrowed moneydisposition (whether by merger, debt securitiessale of stock, warrants sale of assets or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations otherwise) of any Person or material line of business of another Person pursuant to which any Acquired Company has continuing indemnification or payment obligations, or relate to any such proposed (in each casebut unconsummated) acquisition or disposition (whether by merger, excludingsale of stock, for the avoidance sale of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries assets or between or among any wholly-owned Subsidiaries of the Companyotherwise);
(ixxii) under which any hedgingAcquired Company has continuing guarantee, swaproyalty payment, derivativeachievement or results payment, milestone payment, “earn-out” or other contingent payment obligations, or similar Contractthat provide for future payments by any Acquired Company that are triggered by a change of control of an Acquired Company;
(xxiii) that is a license (are settlement, conciliation or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) similar agreements pursuant to which any Acquired Company will have any material obligation after the date of this Agreement; or
(xiv) provide for a term of more than twelve (12) months, are not terminable by the applicable Acquired Company upon less than 30 days’ notice without penalty and require payments to or from any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 Acquired Company in excess of $1,000,00050,000 in the preceding twelve-month period, other than non-exclusive licenses granted pursuant to customers purchase or sales orders made in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract Seller has made available to Buyer a true and complete copy of each written Material Contract, together with all amendments, exhibits and attachments thereto. Except as would not reasonably be expected, individually or in the aggregate, to have a material effect on the Acquired Companies, as of the type described above in Section 4.15(a)date hereof, whether or not set forth in Section 4.15(a(i) of the Company Disclosure Scheduleeach Material Contract is a legal, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on obligation of the applicable Acquired Company or the applicable Subsidiary of the CompanySeller, as the case may beapplicable, and, to the Knowledge of the CompanySeller, on each other party thereto, counterparty and (B) is in full force and effect, except (i) as may be limited by bankruptcysubject to the Enforceability Exceptions, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would notthe applicable Acquired Company and Seller have performed all material obligations required to be performed by them under the Material Contracts, individually and they are not (with or without the lapse of time or the giving of notice, or both) in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor breach or default in any Subsidiary of the Company has, material respect thereunder and, to the Knowledge of the CompanySeller, none of the no other parties thereto have, violated party to any provision of, or committed or failed to perform any act under, and no event or condition exists, which Material Contract is (with or without notice, the lapse of time or the giving of notice, or both) would constitute a in breach of or default underin any material respect thereunder, the provisions of any Material Contract, except in each case for those violations, acts and (or failures to actiii) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the no Acquired Company has received written notice of assigned, delegated or otherwise transferred to any Person any of the foregoing. To the Knowledge of the Companyits rights, since February 1, 2021, no counterparty to title or interest under any Material Contract has (A) canceled or otherwise terminated, or threatened in writing other than any interest granted to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount lender of business that any such counterparty presently engages in or presently conducts with the Company Seller and its Subsidiaries other than, in each case, as would not reasonably Affiliates that will be expected to have a Material Adverse Effectreleased at Closing).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Eagle Materials Inc)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, Schedule 4.19 lists as of the date hereof, neither the Company nor any Subsidiary Agreement Date each of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar following Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside is a party or which bind or affect their respective properties or assets (excluding (x) Licenses, all of which Contracts are disclosed on Schedule 4.15(i)):
(i) any Contract or group of related Contracts for the purchase or lease of services, products, materials, supplies, goods, equipment, or other assets providing for either (A) annual payments by the Company in excess of $5,000, including any and all purchase orders; or (B) give rise to anticipated receipts by the counterparty to the Contract of more than $5,000 in any calendar year, in each case that cannot be terminated on more than ninety (90) days’ notice without payment by the Company of a penalty in excess of $5,000;
(ii) any Contract involving the obligation of the ordinary course Company to sell products or services pursuant to which the aggregate payments to become due to the Company exceeds $5,000 annually;
(iii) any Contract relating to the acquisition or disposition of any material business (whether by merger, stock sale, asset sale, or otherwise) pursuant to which the Company or its Subsidiaries have has material continuing obligationsobligations following the date of this Agreement;
(iv) any Contract relating to any swap, forward, futures, warrant, option or other derivative transaction;
(v) any Contract appointing any agent to act on behalf of the Company or any power of attorney;
(vi) any option, license, franchise or similar Contract;
(vii) containing (A) a covenant any employment, severance, retention, change in control or other provision limiting in similar Contract with any material respect current or former director, officer or employee with the ability title of vice-president or higher of the Company in respect of which the Company has or could reasonably be expected to have ongoing payment obligations after the Closing Date;
(viii) any Contract with a Governmental Authority;
(ix) any Contract between the Company, on the one hand, and Seller or any Subsidiary of its Affiliates, on the Company to compete or engage in other hand;
(x) any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right Contract containing provisions that limits limit the ability of the Company or any of its Subsidiaries Affiliates (or which, following the consummation of the transactions contemplated hereby, could restrict the ability of Buyer or any of its Affiliates) to compete in any business or with any Person or in any geographic area, or to sell, transfersupply or distribute any of the Company’s services or products (including any non-compete, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volumeexclusivity, “earnoutmost-favored-nation” or other contingentsimilar requirements) or pursuant to which any benefit or right is required to be given or lost, deferred or fixed payment obligation any penalty or detriment is incurred, as a result of so competing or engaging; Pharma15 Corporation 17
(xi) any Contract that provides for or governs the formation, creation, operation, management or control of any strategic partnership, joint venture, joint development, or similar arrangement or partnership; and
(xii) any Contract that relates to Indebtedness having an outstanding principal amount in excess of $1,000 or conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case, in connection with which the aggregate actual contingent obligations of the Company and its Subsidiaries, in each case, that Subsidiaries under such Contract is material to the Company and its Subsidiaries, taken as a whole;greater than $1,000.
(viiib) relating The Company previously has made available to Buyer and Parent true, correct, and complete copies of all Contracts disclosed or evidencing indebtedness for borrowed moneyrequired to be disclosed on Schedule 4.19 (each, debt securitiesa “Material Contract”); in the case of any oral Material Contract, warrants or other rights to acquire any debt securities, Schedule 4.19 sets forth a full and accurate written summary of the material terms of such Contract. Each Material Contract is valid and binding on the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenantparty thereto and is in full force and effect and enforceable in accordance with its terms, consent or other rights in or to use Intellectual Property) of Third Party Rights granted subject to the Company Enforcement Limitations, and unless expired or any Subsidiary of the Company (A) on an exclusive basisterminated in accordance with its terms. The Company, (B) on a non-exclusive basisits Subsidiaries and, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company Knowledge of Sellers and its Subsidiaries taken as a whole;
(xii) that the Company, each other party to each Material Contract, have performed and complied with all obligations required to be performed or complied with by them under each Material Contract. There is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or no default under any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Material Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of by the Company or any of its Subsidiaries or relating to dispositionby any other party, voting and no event has occurred that with the lapse of time or dividends with respect to any equity securities the giving of either written or oral notice or both would constitute a default thereunder by the Company or any of its Subsidiaries; or
(xvi) is with an affiliate Subsidiaries or by any other Person that would be required party to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “each Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Radiopharm Theranostics LTD)
Material Contracts. (a) Except (iSchedule 4.6(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planssets forth a complete list, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the following Contracts (excluding any Employee Benefit Plan) to which a Group Company is a party to or is bound by any Contract:(the Contracts set forth on such Schedule, collectively, the “Material Contracts”):
(i) Contracts with the Group Companies’ vendors that is a “material contract” involved expenditures by the Group Companies of more than $100,000 for the twelve (as such term is defined in Item 601(b)(10) 12)-month period ended on December 31, 2015 or are reasonably expected to involve expenditures by the Group Companies of Regulation S-K of more than $100,000 for the Exchange Act)twelve (12)-month period commencing on January 1, 2016;
(ii) that is with Contracts relating to the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, Credit Arrangements and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)Indebtedness with a principal amount outstanding greater than $250,000;
(iii) that is with Contracts prohibiting or restricting the ten (10) largest vendors ability of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Group Company or any of its Subsidiaries outside of the ordinary course of business pursuant Affiliates to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or engage any other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete service providers or engage in any line of business or to compete with any Person in any geographic geographical area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viiiiv) relating to joint venture Contracts, partnership agreements or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person limited liability company agreements with a third party (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-other than with respect to wholly owned Subsidiaries of the Company);
(v) Contracts pursuant to which any Group Company grants or receives a license to use any Group Company IP Rights (other than licenses for commercially-available software or involving annual payments to or from the Group Companies that do not exceed $150,000 per year);
(vi) Contracts that require any Group Company to dispose of or acquire any assets or properties valued in excess of $500,000 after the date hereof, or any merger or business combination with respect to any Group Company;
(vii) Contracts that constitute an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a hedging transaction;
(viii) Contracts that constitute an agreement under which any Group Company has purchased or sold real property and such Group Company has uncompleted financial obligations in excess of $250,000 or material obligations to indemnify a third party that have not expired;
(ix) Contracts that require any hedging, swap, derivativeGroup Company to make any re-prorations or adjustments to previously paid prorations with respect to any Owned Real Property that would reasonably be expected to result in the loss of future payments to, or similar Contractan obligation to make payments by, any such Group Company of more than $250,000;
(x) that is Contracts under which a license (or Person other than a covenant, consent or other rights in or Group Company provides property management services to use Intellectual Property) granted by the a Group Company or any Subsidiary of the under which a Group Company provides property management services to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, a Person other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeGroup Company;
(xi) Contracts that is constitute a license loan to any Person (or other than a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any wholly-owned Subsidiary of the Company) by any Group Company (A) on in an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 amount in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;250,000; or
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends Contracts with respect to any equity securities of the transactions between a Group Company or any of its Subsidiaries; or
(xvi) is with and an affiliate or other Person that would be Affiliate required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesset forth on Schedule 4.18.
(b) Each Contract of the type described above in Section 4.15(aExcept as set forth on Schedule 4.6(b), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, each Material Contract is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the applicable Group Company or the applicable Subsidiary of the Company, as the case may be, and enforceable in accordance with its terms against such Group Company and, to the Knowledge of the Company, each other party thereto, and thereto (B) in full force and effect, except (i) as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar Applicable Law Laws affecting generally the enforcement of creditors’ rights generally and by subject to general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contractequity), except in each case for those violationswhere any such invalidity, acts (failure to be binding or failures to act) and defaults which, individually non-enforceability is not or in the aggregate, would not reasonably be expected to have be material to the Group Companies, taken as a Company Material Adverse Effect whole. Except as set forth on Schedule 4.6(b), each Group Company, and, as of February 1, 2021, to the Knowledge Company’s Knowledge, each of the Companyother parties thereto, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty performed all obligations required to any be performed by it under each Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that except where any such counterparty presently engages in non-performance is not or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to be material to the Group Companies, taken as a whole.
(c) No Group Company is a party or is subject, directly or indirectly, to any Tax Protection Agreement that will survive the Closing or that would require payments thereunder in connection with the consummation of the Merger and the other transactions contemplated hereunder. As used herein, a “Tax Protection Agreement” is an agreement that has as one of its purposes to permit a Person to take the position that such Person could defer federal taxable income that otherwise might have been recognized upon a Material Adverse Effecttransfer of property to a Group Company that is treated as a partnership for federal income tax purposes, and that (i) prohibits or restricts in any manner the disposition of any assets of a Group Company, (ii) requires that any Group Company maintain, put in place, or replace, indebtedness, whether or not secured by any Owned Real Property, or (iii) requires that any Group Company offer to any Person at any time the opportunity to guarantee or otherwise assume, directly or indirectly (including through a “deficit restoration obligation,” guarantee (including a “bottom dollar” guarantee), indemnification agreement or other similar arrangement (including a “bottom dollar” reimbursement agreement)), the risk of loss for federal income tax purposes for indebtedness or other liabilities of any Group Company.
(d) No Group Company has guaranteed the Indebtedness of any Person that is not a Group Company.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC DocumentsSchedule 3.17 sets forth a true, (ii) for this Agreement complete and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as correct list of the date hereof, neither the Company nor following Contracts to which any Subsidiary of the Company is Companies are a party to or is by which any of their assets or properties are bound by any Contract:(collectively, the “Material Contracts”):
(i) that is a “material contract” Each Contract, the performance of which could reasonably be expected to require net payments by or receipts to the Companies in excess of Two Hundred Fifty Thousand Dollars (as such term is defined $250,000) per Company, in Item 601(b)(10) of Regulation S-K of the Exchange Actany calendar year (excluding employee compensation arrangements);
(ii) that is with the ten (10) largest customers Each Contract providing for any future contingent payment by any of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 Companies in excess of Two Hundred Fifty Thousand Dollars (as determined based on revenue received from such customers during such time period$250,000) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries)aggregate;
(iii) that is Each Contract with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders Major Customer or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)Major Supplier;
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to Each Contract containing covenants limiting the disposition or acquisition of any business, equity, or all or substantially all freedom of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company Companies or any of its Subsidiaries outside Affiliate of the ordinary course of business pursuant Companies (including Buyer and its Affiliates after Closing) to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or negotiate and enter into this Agreement, engage in any line of business or to compete with any Person Person, in any geographic area, other than any customary employee non-solicitation product line or no-hire clauses entered into in the ordinary course line of business, or operate at any location;
(Bv) “most favored nation”Each Contract or other instruments providing for the borrowing or lending of money, “exclusivity” in an amount in excess of Fifty Thousand Dollars ($50,000), whether as borrower, lender or guarantor;
(vi) Each Contract relating to joint ventures, alliances, partnerships, or joint development or similar provisionsarrangements with any Third Party;
(vii) Each Contract, (C) a right of first refusal or right of first offer consent, royalty or similar right that limits the ability agreements relating to Intellectual Property involving payments in an amount in excess of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or One Hundred Thousand Dollars (D$100,000) a minimum purchase, minimum volume, “earnout” annual (other than shrink-wrap or other contingent, deferred or fixed payment obligation of the Company off-the-shelf license agreements and its Subsidiaries, in each case, that is other Intellectual Property not material to the Company and its Subsidiaries, taken as a wholeconduct of the business of the Companies);
(viii) relating to Each Contract with current or evidencing indebtedness former officers, employees, directors, consultants, independent contractors or agents for borrowed moneyemployment and all severance, debt securitieschange in control or similar arrangements with any current or former directors, warrants officers, employees, consultants, independent contractors or other rights to acquire agents that will result in any debt securities, obligation (absolute or contingent) of any of the Company Companies to make any payment in excess of Twenty Five Thousand Dollars ($25,000) to any current or any Subsidiary former managers, officers, employees, consultants, PURCHASE AND SALE AGREEMENT independent contractors or agents following either the consummation of the CompanyTransactions, termination of employment (or the relevant relationship), or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)both;
(ix) Each Contract with any hedgingGovernmental Entity that has a remaining term in excess of thirty (30) days or is not cancelable (without material penalty, swap, derivative, cost or similar Contractother liability) within thirty (30) days;
(x) that is a license (or a covenant, consent or other rights in or Each Contact relating to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholePermits;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted Each Contract relating to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeReal Property;
(xii) that is a Company Real Property Lease with remaining obligations Each Contract or commitment in excess which any of $1,000,000the Companies have granted manufacturing rights or exclusive marketing rights relating to any product or service, any group of products or services or any territory;
(xiii) that involves a material joint ventureEach Contract for the acquisition or sale, profit sharingdirectly or indirectly (by merger or otherwise) of assets (whether tangible or intangible, partnership or similar agreement from which other than inventory sold in the Company Ordinary Course) or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024Equity Interest to another Person;
(xiv) that is a settlementEach Contract relating to the Equity Interests or other ownership in assets of another Person, conciliation including each Contract containing voting, management, change of control, or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company transfer provisions related to such capital stock or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);assets; or
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating Each Contract requiring bonuses to be paid to any equity securities of Seller, at any time after December 31, 2010 or for any services performed prior to the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned SubsidiariesEffective Date.
(b) Each Contract True, complete and correct copies of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for written Material Contracts that and descriptions of oral Material Contracts, if any, have expired or terminated by their terms, all been delivered to Buyer. Each of the Material Contracts are (A) is a valid and binding on the Company obligation of one or the applicable Subsidiary more of the Company, as the case may be, Companies and, to the Knowledge of the CompanyCompanies, each enforceable against one or more of the Companies and the other party parties thereto, and (B) in full force and effectaccordance with its terms, except (i) as may be limited by bankruptcy, insolvency, moratorium and other moratorium, reorganization or similar Applicable Law Laws affecting creditors’ the rights of creditors generally and by general principles of equity and (ii) as would not, individually or in equity. Except for the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary consummation of the Company hasTransactions, andno event has occurred that would, on notice or lapse of time or both, entitle the holder of any indebtedness issued pursuant to a Material Contract to accelerate, or that does accelerate, the maturity of any such indebtedness.
(c) None of the Companies has received any written notice from any Third Party alleging that any of the Companies are, or, to the Knowledge of the CompanyCompanies, none of the other parties thereto haveany Third Party is, violated any provision ofin breach, default or committed or failed to perform any act under, violation (each a “Default”) (and no event has occurred or condition exists, which (with not occurred through the Companies’ action or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021inaction or, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has Companies, through the action or inaction of any Third Parties, which with notice or the lapse of time or both would constitute a Default) of any term, condition or provision of any Material Contract.
(d) None of the Companies have received written notice of the termination of, or intent to terminate or otherwise fail to fully perform any Material Contract. To the PURCHASE AND SALE AGREEMENT Knowledge of any of the foregoing. To the Knowledge of the Company, since February 1, 2021Companies, no counterparty third party has threatened to terminate or not materially perform its obligations under any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Basic Energy Services Inc)
Material Contracts. (a) Except as disclosed on Schedule 5.6, Parent has delivered or made available to the Company an accurate list (attached hereto as Schedule 5.6), and true and complete copies, of all of the material contracts, leases and instruments to which Parent is a party or by which Parent or any of its material assets are bound, including, (i) as filed as exhibits to the Company SEC Documents, any Provider Contract; (ii) for this Agreement and the any loan agreement, promissory note, mortgage, security agreement, guaranty or other agreements documents entered into in connection therewith with the transactions contemplated hereby and respect to any Indebtedness; (iii) any contract or agreement for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreementsmaintenance, purchase orders or statements sale of work equipment or invoices entered into in capital assets that involves the ordinary course expenditure or receipt of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiariesmore than One Hundred Thousand Dollars ($100,000);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
; (iv) any lease of personal or real property where Parent is lessor or lessee that is a Government Contract;
involves the expenditure or receipt of more than Fifty Thousand Dollars ($50,000); (v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
any partnership agreement or joint venture agreement; (vi) relating to any license or other agreement involving Parent’s Intellectual Property that is material and necessary for the disposition or acquisition of any business, equity, or all or substantially all operation of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
Business; (vii) containing (A) a covenant any agreement with another Person limiting or other provision limiting in any material respect restricting the ability of the Company or any Subsidiary of the Company Parent to compete enter into or engage in any market or line of business or to compete with any Person in any geographic area, business; (viii) other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course Ordinary Course of businessBusiness, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right any contracts for the sale of first refusal or right of first offer or similar right any assets that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is would be material to the Company and its Subsidiaries, Parent taken as a whole;
(viii) relating whole or for the grant to or evidencing indebtedness for borrowed money, debt securities, warrants or other any Person of any preferential rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and purchase any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
their assets; (ix) any hedgingagreement relating to the acquisition by Parent of any material operating business or the material assets or capital stock of any other Person entered into since January 1, swap, derivative, or similar Contract;
2013; (x) that is a license any agreements under which Parent has made material advances or loans to any other Person (which shall not include advances or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers loans made in the ordinary course Ordinary Course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
Business); (xi) any material settlement since January 1, 2013 or similar contract resolving any litigation against or by Parent that is a license (or a covenant, consent or other rights in or creates reporting obligations to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
Governmental Authority; (xii) sales representative or sales or distribution contracts that is a Company Real Property Lease with remaining obligations in excess involve the expenditure or receipt of more than Twenty-Five Thousand Dollars ($1,000,000;
25,000); and (xiii) that involves a material joint venture, profit sharing, partnership any shareholders or similar voting agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with contract under which Parent has granted any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or Person any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements(collectively, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries“Parent Material Contracts”).
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, With respect to the Knowledge of the Company, each other party thereto, and Parent Material Contracts: (Bi) Each Parent Material Contract is in full force and effecteffect against Parent, except (i) as may be limited by bankruptcyhas not been terminated or canceled and no written notice of termination or cancellation has been given or received, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or Parent has not been advised in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of writing that the other parties party thereto have, violated intends to cancel any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Parent Material Contract, except in each case for those violationsand (iii) to Parent’s Knowledge, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company there are no outstanding disputes under any Parent Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Material Contracts. The Company has delivered or made available to Purchaser a true and complete copy of each written Contract that is of a type described below (collectively, the "COMPANY MATERIAL CONTRACTS"):
(a) Except any Contract for capital expenditures or the acquisition or construction of fixed assets in excess of $250,000.00 per annum;
(ib) as filed as exhibits any Contract for the purchase or lease of goods or services (including without limitation, equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments in excess of $250,000.00 per annum, other than standard inventory purchase orders executed in the ordinary course of business;
(c) any Contract relating to the Company SEC Documentsborrowing of money or guaranty of indebtedness;
(d) any collective bargaining or other arrangement with any labor union;
(e) any Contract granting a first refusal, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as first offer or similar preferential right to purchase or acquire any of the date hereofCompany's capital stock or assets;
(f) any Contract limiting, neither restricting or prohibiting the Company nor from conducting business anywhere in the United States or elsewhere in the world or any Subsidiary Contract limiting the freedom of the Company is a party to engage in any line of business or is bound by to compete with any other Person;
(g) any joint venture or partnership Contract:;
(h) any written employment Contract, severance agreement or other similar binding agreement or policy with any officer or employee; and
(i) any Contracts requiring future payments of $250,000.00 or more per annum which are not otherwise described in clauses (a) though (h) above. The Company has also delivered or made available to Purchaser a copy of the Company's form of independent contractor agreement. Each Company Material Contract is a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to bankruptcy, reorganization, receivership or other laws affecting creditors' rights generally and general principles of equity (whether applied in an action at law or in equity). The Company is in compliance with all obligations required to be performed by it under the Company Material Contracts, and the Company is not and, to the Knowledge of the Company, no other party to a Company Material Contract is, in breach or default thereunder in any material respect. Each Contract of the Company that is a “"material contract” (" as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of SEC has been filed in the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable SEC Reports prior to the date hereof. The Company is not a party to any written or its Subsidiaries);
(iii) that is oral customer contract with the ten (10) largest vendors revenues of the Company and its Subsidiaries during the fiscal over $150,000 per year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of requires the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities penalty upon termination of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariessuch contract.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Cd&l Inc)
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the Contracts specifically identified in Schedule 2.20 of the Sellers’ Disclosure Letter, the Company is not a party to or bound by any of the following Contracts (each a “Material Contract”, it being understood that the use of the word “material” in this definition is not an admission that any of the individual contracts described below are in fact material to the business or operations of the Company):
(i) any distributor, original equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer’s representative Contract;
(ii) any continuing Contract for the purchase, sale or license of materials, supplies, equipment, services, software, Intellectual Property or other agreements entered into assets involving in connection with the transactions contemplated hereby and case of any such Contract more than $10,000 over the life of the Contract;
(iii) any Contract that expires or may be renewed at the option of any Person other than the Company so as to expire more than one year after the Agreement Date;
(iv) any trust indenture, mortgage, promissory note, loan agreement or other Contract for Company Employee Plansthe borrowing of money, as any currency exchange, commodities or other hedging arrangement or any leasing transaction of the date hereof, neither type required to be capitalized in accordance with GAAP;
(v) any Contract for capital expenditures in excess of $10,000 in the aggregate;
(vi) any Contract limiting the freedom of the Company nor to engage or participate, or compete with any Subsidiary other Person, in any line of business, market or geographic area, or to make use of any Intellectual Property, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract otherwise limiting the right of the Company to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(vii) any Contract pursuant to which the Company is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in excess of $10,000 per annum;
(viii) any Contract (A) with any of its officers, directors, employees or stockholders or any member of their immediate families or (B) with any Person with whom the Company does not deal at arm’s length;
(ix) any Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person;
(x) all licenses, sublicenses and other Contracts as to which the Company is a party and pursuant to or which any Person is bound by authorized to use any Contract:
Company IP Rights (i) that is a “material contract” (as such term is defined excepting nonexclusive licenses of Company Products to its customers in Item 601(b)(10) the ordinary course of Regulation S-K of the Exchange Actits business consistent with its past practices);
(iixi) other than “shrink wrap” and similar generally available commercial end-user licenses to software that is not redistributed with or used in the ten (10) largest customers development or provisions of the Company Products that have an individual acquisition cost of $5,000 or less, all licenses, sublicenses and other Contracts to which the Company is a party and pursuant to which the Company acquired or is authorized to use any Third Party Intellectual Property Rights (excepting nonexclusive licenses from its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into vendors in the ordinary course of business);
(xii) all licenses, sublicenses and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid the Company has agreed to any restriction on the right of the Company to use or payable enforce any Company-Owned IP Rights or pursuant to which the Company agrees to encumber, transfer or sell rights in any Company-Owned IP Rights;
(xiii) any Contract providing for the development of any software, content, technology or Intellectual Property, independently or jointly, by or for the Company;
(xiv) any Contract to license or authorize any third party to manufacture or reproduce any of the products, services, technology or Intellectual Property of the Company;
(xv) any Contracts relating to the mechanics of, or participation by, the Company in, or the affiliation of the Company with, any industry standards group or association;
(xvi) (A) any joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons or (C) any Contract that involves the payment of royalties to any other Person;
(xvii) any agreement of indemnification or warranty or any Contract containing any support, maintenance or service obligation or cost on the part of the Company (other than under its Subsidiariesunmodified form of standard customer or distributor agreement, the form of which has been made available to counsel to Purchaser);
(iiixviii) that is with any Contract for the ten (10) largest vendors employment of any director, officer, employee or consultant of the Company and its Subsidiaries during or any other type of Contract with any officer, employee or consultant of the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors Company that is not immediately terminable by the Company during such time period) (excluding without cost or liability, including any non-disclosure agreementsContract requiring it to make a payment to any director, data processing agreementsofficer, purchase orders employee or statements consultant on account of work the Share Purchase, any transaction contemplated by this Agreement or invoices any Contract that is entered into in connection with this Agreement;
(xix) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the ordinary course sale, issuance, grant, exercise, award, purchase, repurchase or redemption of businessany shares of Company Capital Stock or any other securities of the Company or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights disclosed on Schedule 2.4(a)-2 of the Sellers’ Disclosure Letter;
(xx) any Contract under which the Company provides any advice or services to any third party, including any consulting Contract, professional Contract or software implementation, deployment or development services Contract, or support services Contract (including, for each such contract, a description of the percentage of completion and other similar Contracts that are ancillary expected additional hours, resources and costs necessary to Contracts pursuant to which cost of goods and services is paid or payable by the Companycomplete such services);
(ivxxi) that is a Government Contractany Contract with any labor union or any collective bargaining agreement or similar contract with its employees;
(vxxii) evidencing a capital expenditure for which future payments are required any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company, in excess of $5,000,000connection with this Agreement and the transactions contemplated hereby;
(vixxiii) relating any Contract pursuant to which the disposition Company has acquired a business or acquisition of any business, equityentity, or all or substantially all of the assets of any Person for aggregate consideration in excess a business or entity, whether by way of $5,000,000 by the Company merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any of contract pursuant to which it has any ownership interest in any other Person (other than its Subsidiaries outside of subsidiaries);
(xxiv) any Contract with any Governmental Entity or any Company Authorization;
(xxv) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into with customers and distributors in the ordinary course of business pursuant to the Company’s standard unmodified form (a copy of which has been provided to counsel to Purchaser);
(xxvi) any settlement agreement;
(xxvii) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Share Purchase or other transactions contemplated hereunder, either alone or in combination with any other event; or
(xxviii) any other Contract or obligation not listed in clauses (i) through (xxiii) that individually had or has a value or payment obligation in excess of $10,000 over the life of the Contract or is otherwise material to the Company or its Subsidiaries have material continuing obligations;business, operations, financial condition, properties or assets.
(viib) containing Except as set forth on Schedule 2.20, all Material Contracts are in written form. The Company has performed in all respects all of the obligations required to be performed by it and is entitled to all benefits under, and has not received any written allegation of default in respect of, any Material Contract. Each of the Material Contracts is in full force and effect, subject only to the effect, if any, of applicable bankruptcy and other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default with respect to the Company or, to the Company’s knowledge, with respect to any other contracting party under any Material Contract. To the Company’s knowledge, there exists no other event, occurrence, condition or act with respect to the Company which would, with the giving of notice, the lapse of time or the happening of any other event or condition, reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) give any third party (A) the right to declare a covenant default or other provision limiting in exercise any material respect the ability of the Company or remedy under any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of businessMaterial Contract, (B) “most favored nation”the right to a rebate, “exclusivity” chargeback, refund, credit, penalty or similar provisionschange in delivery Schedule under any Material Contract, (C) a the right to accelerate the maturity or performance of first refusal or right of first offer or similar right that limits the ability any obligation of the Company or any of its Subsidiaries to sellunder any Material Contract, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchasethe right to cancel, minimum volume, “earnout” terminate or modify any Material Contract. The Company has not received any written notice or other contingentcommunication regarding any actual or possible violation or breach of, deferred default under, or fixed payment obligation intention to cancel or modify any Material Contract. The Company does not have any liability for renegotiation of the Company government Contracts. True, correct and its Subsidiaries, in each case, that is material complete copies of all Material Contracts have been provided to Purchaser prior to the Company and its Subsidiaries, taken as a whole;Agreement Date.
(viiic) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire The Company has not entered into any debt securities, of the Company or Contract that restricts any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (area in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company can engage, participate or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) compete with any Governmental Authority entered into since February 1other Person, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person and that would be required to be disclosed under Item 404 of Regulation S-K promulgated under binding upon Purchaser after the Exchange ActClosing, other than including any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or restriction upon competing in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary area of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectlumbar total disc replacement products.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documentsset forth on Schedule 2.16(a), (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is not a party to or is bound by any Contract:
(i) that is a “material contract” involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of Fifty Thousand Dollars (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act$50,000);
(ii) that is with the ten (10) largest customers involves performance of services or delivery of goods or materials to the Company and its Subsidiaries during the fiscal year ended January 31, 2024 of an amount or value in excess of Fifty Thousand Dollars (as determined based on revenue received from such customers during such time period$50,000);
(iii) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices that was not entered into in the ordinary course of business, business and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid involves expenditures or payable to receipts of the Company or its Subsidiariesin excess of Fifty Thousand Dollars ($50,000);
(iiiiv) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31relating to any written employment, 2024 (as determined based on cost of goods and services paid to such vendors consulting, or similar arrangements requiring payment by the Company during such time periodof base annual compensation in excess of Fifty Thousand Dollars ($50,000);
(v) with or relating to any staffing agency for the provision of temporary labor, personnel, or agency workers to the Company pursuant to which the Company paid more than Fifty Thousand Dollars (excluding $50,000) in the last fiscal year;
(vi) relating to any non-disclosure agreementslabor union or other employee representative of a group of employees relating to wages, data processing agreementshours, purchase orders and other conditions of employment;
(vii) relating to any written warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by the Company other than in the ordinary course of business;
(viii) pursuant to which the Company has incurred or statements committed to incur any Funded Indebtedness;
(ix) that by its terms grants an Encumbrance upon any material asset of work the Company;
(x) that by its terms provides for the sale, assignment, license, or invoices entered into other disposition of any material asset or right of the Company, other than in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company)than any Company Intellectual Property Licenses;
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (Bxi) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, (other than non-exclusive licenses granted pursuant to customers in the ordinary course of business, and/or (Ca Company Loan) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, paid more than One Hundred Thousand Dollars ($100,000) in the last fiscal year or (B) on a non-exclusive basis, if pursuant to which received more than One Hundred Thousand Dollars ($100,000) in the Company or any Subsidiary made payments during the last fiscal year ended January 31, 2024 and not otherwise listed in excess any other portion of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a wholeSchedule 2.16(a);
(xii) that is by its terms contains any covenant or provision currently in effect limiting the freedom of the Company from engaging in a Company Real Property Lease with remaining obligations line of business or competing in excess of $1,000,000any geographic area;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which by its terms grants to the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024exclusive right to provide Products and Services;
(xiv) that pursuant to which the Company is a settlementby its terms obligated to make any severance, conciliation termination, change in control, or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries payment to any material ongoing requirements current or restrictions (other than ordinary course confidentiality requirements former Company Employee, officer, director, or restrictions)manager;
(xv) containing covenants or other obligations of the Company pertaining to the non-solicitation of employees, customers, or Contractors or granting any stockholders’ agreementPerson a right of first refusal, proxyfirst offer, voting trust agreement first negotiation, or registration rights agreement other exclusivity, requirements, output, or “most favored customer” provisions or similar agreements, arrangements restrictions on the operation or commitments relating scope of the Company’s business or operations;
(xvi) that is a partnership or joint venture agreement in which the Company participates as a general partner or joint venturer;
(xvii) pursuant to which the Company has advanced or loaned any amount to any equity securities of its directors, officers, or employees outside the ordinary course of business;
(xviii) with any member, manager, or officer of the Company or any Affiliate of its Subsidiaries the same (other than an employment agreement);
(xix) Contracts under which the Company serves Medicare beneficiaries who require equipment or relating supplies in one or more Competitive Bidding Areas (CBAs) through a DMEPOS Competitive Bidding program;
(xx) pertaining to dispositionthe provision, voting sale, distribution, labeling, or dividends with respect marketing of items and/or services that are payable to any equity securities of the Company Person, in whole or in part, by a Federal Health Care Program, including Medicare, Medicaid, and/or TRICARE;
(xxi) with any of its SubsidiariesPhysician or Physician-owned entity, whether written or oral;
(xxii) with any Governmental Authority; or
(xvixxiii) is with an affiliate or other Person that would be required any outstanding written legally binding commitment to be disclosed under Item 404 enter into any agreement of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among type described in the Company and its wholly-owned Subsidiariesforegoing subsections of this Section 2.16(a).
(b) Each Contract of the type described above in Section 4.15(a), whether or not Except as set forth in Section 4.15(aSchedule 2.16(b), each Contract that is required to be listed in Schedule 2.16(a) of the Company Disclosure Schedule(each, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their ”) is in full force and effect and constitutes the legal, valid, and binding obligation of the Company and each other party thereto, enforceable against such party in accordance with its terms, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar Laws affecting creditors’ rights and remedies generally. The Company has made available to Purchaser complete and correct copies of all of the written Material Contracts Contracts, together with all amendments, supplements, or modifications thereto. There are (A) valid and binding on no oral Material Contracts. Neither the Company or the applicable Subsidiary of the Company, as the case may be, andnor, to the Knowledge of the CompanySellers, each any other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except is in each case for those violationsbreach of, acts (or failures to act) and defaults which, individually or in the aggregatedefault under, would not reasonably be expected to have a Company such Material Adverse Effect andContract, as of February 1, 2021, to the Knowledge in any material respect. As of the Companydate hereof, neither the Company nor no party has given any Subsidiary of the Company has received written notice of any termination or cancellation of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminatedthat it intends to assert a breach of, or threatened in writing seek to cancel terminate or otherwise to terminatecancel, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectContract.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into set forth in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as Section 3.14 of the date hereofDisclosure Schedule (organized by the appropriate paragraph and applicable subsection), neither the Company nor any Subsidiary of the Company is not a party to any of the following types of Contracts under which the Company has any remaining rights or is bound by any Contractobligations:
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant limits or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits restricts the ability of the Company or any of its Subsidiaries Affiliates (or, after giving effect to sellthe Merger, transferParent, pledge the Surviving Corporation or any of their Affiliates) to compete in any business or with any Person in any geographical area or otherwise dispose restricts the operations or business of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basissuch Persons, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which requires the Company or any of its Subsidiaries recognized revenues Affiliates (or, after giving effect to the Merger, Parent, the Surviving Corporation or any of their Affiliates) to conduct any business on a “most favored nations basis” with any Person or (C) provides for exclusivity or any similar requirement in favor of any Person;
(ii) any employment, independent contractor or consulting Contract with an employee, independent contractor, consultant, or salesperson, or any Contract to grant any severance or termination pay (in cash or otherwise) to any such Person;
(iii) any Contract, including any Benefit Plan, any of the benefits of which will become payable, be increased or accelerated by the consummation of, or calculated on the basis of, any of the transactions contemplated by this Agreement;
(iv) any lease of personal property or other Contract affecting the ownership of, leasing of, or other interest in, any personal property and involving future payments in excess of $1,000,000 during 50,000 in the fiscal year ended January 31, 2024aggregate;
(xivv) that is a settlementany power of attorney or surety or guarantee agreement or other similar undertaking with respect to contractual performance;
(vi) any Contract relating to capital expenditures and involving future payments in excess of $10,000 individually or $50,000 in the aggregate;
(vii) any Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business, conciliation other than as expressly contemplated by this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, including the Merger;
(viii) any Contract relating to the incurrence of Indebtedness by the Company or any extension of credit by the Company to any Person other than advances to Employees for travel or similar expenses in the ordinary course of business consistent with past practice; [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(ix) any Contract that involves performance of services or delivery of software, goods or materials by or to the Company of an amount or value in excess of $10,000 individually or $50,000 in the aggregate;
(x) any dealer, distribution, joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement or outsourcing arrangement;
(xi) any Contract relating to the research, development, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any Company Products other than purchase orders for goods effected in the ordinary course of business consistent with past practice;
(xii) any Governmental Authority entered into since February 1stand-alone nondisclosure, 2021, confidentiality or similar stand-alone agreement;
(yxiii) any Contract which would require contains a non-solicit or no-hire provision that restricts the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement Affiliates;
(xiv) any joint defense, common interest or (z) that subjects the Company or similar agreement with any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions)Person;
(xv) any stockholders’ agreement, proxy, voting trust agreement Contract other than those described in any of clauses (i) – (xiv) of this Section 3.14(a) that provides for indemnification or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of defense by the Company or of any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiariesother Person; or
(xvi) is with an affiliate any other Contracts or other Person restrictions that would be are material to the business, financial condition, working capital, assets, Liabilities, reserves or operations of the Company. Each Contract required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract on Section 3.14 of the type described above in Section 4.15(aDisclosure Schedule or Sections 3.13(e), whether or not set forth in Section 4.15(a) 3.13(f), 3.17 and 3.20 of the Company Disclosure Schedule, Schedule is referred to herein as a “Material Contract” and collectively, the “Material Contracts”).” Except for
(b) Each Material Contracts that have expired Contract to which the Company is a party or terminated by their terms, all any of the Material Contracts are its properties or assets (Awhether tangible or intangible) is subject is a valid and binding on agreement of the Company or enforceable against the applicable Subsidiary Company in accordance with its terms, and is in full force and effect as of the Company, as date hereof with respect to the case may be, Company and, to the Knowledge of the Company, each any other party thereto, subject to the Bankruptcy and (BEquity Exception. Except as set forth in Section 3.14(b) of the Disclosure Schedule, the Company is in full force and effectcompliance in all material respects with, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected has performed all material obligations required to have a been performed by Company Material Adverse Effect. Neither the Company nor under, and has not materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any Subsidiary of the Company hasterms or conditions of any Material Contract, andnor, to the Knowledge of the Company, none is any party obligated to the Company pursuant to any Material Contract in material breach, violation or default thereunder, nor does the Company have Knowledge of any presently existing facts or circumstances that, with the other parties thereto havelapse of time, violated any provision ofgiving of notice, or committed both would constitute such a breach, violation or default by the Company or any such other party. Neither the Company nor any other party thereto has given notice to cancel or otherwise terminate any Material Contract and no event has occurred or failed to perform any act under, and no event or condition exists, occur which (with or without notice, lapse of time or bothi) would constitute a breach of reasonably be expected to result in the cancellation or default under, the provisions termination of any Material Contract, except or (ii) would entitle any such person to terminate any Material Contract, in each case for those violationsother than the expiration of a Material Contract by its terms.
(c) All Indebtedness of the Company may be prepaid without penalty, acts premium or other costs of any kind beyond principal and accrued interest. No Indebtedness of the Company contains any restriction upon (or failures to acti) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as incurrence of February 1, 2021, to the Knowledge of Indebtedness by the Company, neither or (ii) the Company nor any Subsidiary ability of the Company has received written notice of to grant any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled Lien on its properties or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectassets.
Appears in 1 contract
Sources: Agreement and Plan of Merger
Material Contracts. (a) Except Section 3.13(a) of the Seller Disclosure Schedule sets forth as of the date of this Agreement a list of the following Contracts (other than intercompany agreements, purchase orders and invoices solely between Transferred Entities) to which any of the Transferred Entities is a party or by which any of their respective properties or assets are bound (the “Business Material Contracts”):
(i) as filed as exhibits each (A) power purchase agreement, sale or exchange agreement or similar bilateral Contract with a utility or other load serving entity or (B) Contract which provides for the sale, purchase or exchange of electric power in any form (including energy, capacity or ancillary services, RECs or emissions credits);
(ii) each electricity interconnection, transmission or marketing agreement;
(iii) each (A) engineering, procurement and construction agreement, (B) equipment supply or service agreement, (C) warranty agreement and performance guarantee agreement, (D) operation and maintenance agreement and (E) purchase order or similar Contract that has not been fully performed, in each case (x) that obligates any Transferred Entity or any Person on behalf of a Transferred Entity to make payments in excess of $500,000 individually or $1,000,000 in the aggregate and (y) other than any such agreement that has expired or otherwise been terminated in accordance with its terms;
(iv) any Contract (A) committing the Business or any Transferred Entity to any future capital expenditures or capital investments in excess of $500,000 individually or $1,000,000 in the aggregate or (B) for the future sale of any asset or property or granting a right or option in favor of another Person to purchase any asset or property having a value in excess of $500,000 individually or $1,000,000 in the aggregate;
(v) each Contract pursuant to which a Transferred Entity leases, subleases, licenses or otherwise occupies Business Leased Real Property;
(vi) any Contract that by its express terms limits or impairs in any material respect the ability of any of the Transferred Entities to compete in any line of business or with any Person or in any market, field or geographic area (including through non-compete, exclusivity or “most-favored nation” provisions);
(vii) any Contract with a Governmental Entity (other than any such Contract that is entered into in the ordinary course of business and is not material);
(viii) each Contract between any member of the Seller Group (other than the Transferred Entities), on the one hand, and any Transferred Entity, on the other hand, other than any such Contract that will be fully performed by the Closing with respect to such Transferred Entity or will not otherwise survive a Closing in respect of such Transferred Entity);
(ix) any partnership, joint venture, or limited liability company agreement or Contract relating to any equity interests or other securities of a Transferred Entity or rights in connection therewith;
(x) any Contract the primary purpose of which is to address Taxes (including PILOTSs, FILOTs, Tax abatements and tax indemnification Contracts);
(xi) each Contract pursuant to which (A) Seller or any of its Affiliates, including any Transferred Entity, provides or posts any guarantee, indemnity, performance or surety bond, letter of credit, commitments or other similar credit support arrangement or obligation relating to the Company SEC DocumentsBusiness or a Transferred Entity (collectively, the “Seller Guarantees”) or (B) any third party (for clarity, not including Seller or any of its Affiliates) provides or posts any guarantee, indemnity, performance or surety bond, letter of credit, commitments or other similar credit support arrangement or obligation relating to the Business or a Transferred Entity;
(xii) any Contract, other than as set forth in clauses (i) through (xi) of this Section 3.13(a), which expressly provides for future payments to or from any Transferred Entity in excess of $1,500,000 over the term of such Contract; and
(xiii) any Contract whereby a Transferred Entity agrees to enter into any of the foregoing Contracts.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (i) each Business Material Contract is a legal, valid and binding obligation of the applicable Transferred Entity party thereto, and, to the Knowledge of Seller, each counterparty, and is in full force and effect, (ii) for none of the Transferred Entities nor, to the Knowledge of Seller, any other party thereto, is in breach of, or in default under, any such Business Material Contract, and (iii) no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by any such Transferred Entity or, to the Knowledge of Seller, any other party thereto. Seller has Made Available to Purchaser true, complete and correct copies of the Business Material Contracts together with all material amendments and supplements thereto in effect as of the date hereof.
(c) Section 3.13(c) of the Seller Disclosure Schedule sets forth a list of (i) (x) each Business Material Contract that requires a consent or approval from a third party in connection with the consummation of the transactions contemplated by this Agreement and (y) any required filing with and approval of FERC pursuant to Section 203 of the other agreements entered into FPA in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither the Company nor any Subsidiary of the Company is a party consents or approvals referred to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require collectively, the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z“Specified Consents”) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company, each other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would noteach Consent Company to which such Specified Consent relates, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) as agreed between Seller and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectPurchaser.
Appears in 1 contract
Material Contracts. (a) Except (i) as filed as exhibits to Section 4.16 of the Company SEC Documents, (ii) for this Agreement Disclosure Letter sets forth a true and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planscomplete list, as of the date hereofof this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contractof:
(i) each contract that is a “material contract” provides for the acquisition, disposition, license, use, distribution or outsourcing of assets (as such term is defined including Intellectual Property rights), services, rights or properties involving, or with respect to which the Company reasonably expects that the Company or any of its Subsidiaries will make, payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$100,000 in any calendar year;
(ii) each contract that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is constitutes a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) commitment relating to Indebtedness for borrowed money or the disposition or acquisition deferred purchase price of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 property by the Company or any of its Subsidiaries outside (whether incurred, assumed, guaranteed or secured by any asset) in excess of $100,000, other than agreements solely between or among the ordinary course Company and its Subsidiaries;
(iii) each contract for lease of business pursuant personal property or real property involving payments in excess of $100,000 in any calendar year that are not terminable without penalty within sixty (60) days;
(iv) each contract relating to which power or electricity supply to the Company or its Subsidiaries have material continuing obligationsfor the purpose of cryptocurrency mining, if any;
(v) each contract relating primarily to cryptocurrency mining, including miner purchase agreements, miner hosting agreements, infrastructure agreements, immersion cooling agreements and agreements related to research and development (including any statements of work thereto);
(vi) each contract relating to carbon sequestration in connection with the cryptocurrency mining activities of the Company and its Subsidiaries;
(vii) containing each contract relating to the research and development of cryptocurrency miners;
(viii) each contract between the Company or a Subsidiary of the Company, on the one hand, and another Subsidiary of the Company, on the other hand;
(ix) each contract: (A) a covenant or other provision limiting that limits in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability freedom of the Company or any of its Subsidiaries to sellcompete or operate in any line of business or geographical area, transfer, pledge or otherwise dispose of beneficially own any assets, rights or properties or (D) a minimum purchaserights, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire anywhere at any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, time; (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require requires the Company or any of its Subsidiaries to pay consideration deal exclusively with any Person or grants any exclusive rights to any Person; (C) that contains any “most favored nation” or similar provision in favor of more than $1,000,000 after the date counterparty; (D) that contains requirements to purchase any minimum portion of this Agreement any product or service from any Person or to sell any minimum portion of any product or service to any Person; or (zE) that subjects contains a right of refusal, right of first offer or right of first negotiation or similar right with respect to a material asset owned by the Company or any of its Subsidiaries;
(x) each contract with any Governmental Entity;
(xi) each contract involving the settlement of any Proceeding since incorporation which requires payment by the Company or any of its Subsidiaries in excess of $100,000 in any calendar year and under which any such payment is still owing; and
(xii) each contract involving the pending acquisition or sale of (or option to purchase or sell) any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities amount of the Company assets or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities properties of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under Company, taken as a whole. Collectively, the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not contracts set forth in Section 4.15(a4.16(a) of the Company Disclosure Schedule, is are herein referred to herein as a the “Material ContractCompany Contracts.” Except for as would not reasonably be expected to have, individually or in the aggregate, a Company Material Contracts that have expired or terminated by their termsAdverse Effect, all of the Material Contracts are (A) valid each Company Contract is legal, valid, binding and binding enforceable in accordance with its terms on the Company or the applicable Subsidiary and each of the Company, as the case may be, its Subsidiaries that is a party thereto and, to the Knowledge knowledge of the Company, each other party thereto, and (B) is in full force and effect, except (i) subject, as may be limited by bankruptcyto enforceability, insolvency, moratorium and other similar Applicable Law affecting creditorsto Creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectRights. Neither the Company nor any Subsidiary of the Company hasits Subsidiaries, and, to the Knowledge knowledge of the Company, none of the no other parties thereto havePerson, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a is in material breach of or default under, the provisions of under any Material Company Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Business Combination Agreement
Material Contracts. (a) Except (i) as filed as exhibits to Section 4.11 of the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee PlansDisclosure Letter sets forth, as of the date hereofof this Agreement, neither a list of each Contract (other than Benefit Plans, Government Contracts and Government Bids) primarily related to the Company nor Business or any Subsidiary of the Company Transferred Assets that is of the type set forth below (each, a “Material Contract”):
(a) a Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that involves payments, performance or services or delivery of goods or materials to or by the Asset Seller of any amount or value in excess of, or reasonably expected to exceed, $100,000 in any twelve (12) month period and which, in each case, cannot be cancelled without penalty or without more than 30 days' notice;
(b) a Contract that is a party to joint venture agreement or is bound by similar agreement involving the sharing of profits and losses;
(c) a Contract that contains any Contract:
(i) that is a “material contractmost favored nation” (as such term is defined pricing in Item 601(b)(10) favor of Regulation S-K any customer of the Exchange Act);
Business in a manner material to the Business, (ii) that is with a provision expressly requiring the ten (10) largest customers of the Company and Buyer or its Subsidiaries during to purchase goods or services exclusively from another Person immediately following the fiscal year ended January 31Closing, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based express restriction on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company Buyer or any Subsidiary of the Company its Subsidiaries to compete or engage in any line of business or to compete with any Person or to provide services generally or in any market segment or any geographic areaarea immediately following the Closing or (iv) that require the Asset Seller or the Company to purchase or sell a stated portion of the requirements or outputs of the Business or that contain "take or pay" provisions;
(d) a Contract pursuant to which the Asset Seller (or, after the Closing, the Buyer and its Subsidiaries) has incurred or become liable for any Indebtedness owed to a Person other than any customary employee non-solicitation the Company or no-hire clauses entered into in an Affiliate of the ordinary course of business, Company and that is currently outstanding;
(B) “most favored nation”, “exclusivity” or similar provisions, (Ce) a Contract that provides for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(f) any outstanding material settlement offers or other arrangements with respect to any current action related to the Transferred Assets or the Business;
(g) a Contract granting an option to acquire, sell, lease or license any material Transferred Asset or granting any right of first offer, right of first refusal or right of first offer negotiation in respect of any material Transferred Asset;
(h) a Contract or agreement with any labor union, labor organization, guild, or similar right that limits the ability of employee representative which is binding on the Company or any of its Subsidiaries to sellan Affiliate (each, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;Collective Bargaining Agreement”); and
(viiii) relating to any agreement or evidencing indebtedness offer letter, as applicable, for borrowed moneythe employment or engagement of any person on a full-time, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Companyparti-time, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person consulting basis (in each case, excludingincluding, for the avoidance of doubt, intercompany loans between any agreement with any independent contractors or consultants), agreement or offer letter, as applicable, providing severance benefits to any person employed or otherwise providing services to the Company Company, and any of its wholly-owned Subsidiaries agreement or between or among offer letter, as applicable, relating to loans to any wholly-owned Subsidiaries of the Company);
(ix) any hedgingofficer, swapmanager, derivativeemployee, contractor, consultant, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary service provider. Except as set forth on Section 4.11 of the Company to Company Intellectual Property (A) on an exclusive basisDisclosure Letter, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess as of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement Agreement, (i) each Material Contract is in full force and effect and (ii) as to each Material Contract, except for breaches or (z) defaults that subjects have been cured and for which the breaching or defaulting party has no Liability, there does not exist thereunder any material breach or default on the part of the Asset Seller or the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and, to the Knowledge of the Company’s Knowledge, each any other party thereto, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, andthere does not exist, to the Knowledge of the Company’s Knowledge, none of the other parties thereto haveany event, violated any provision of, occurrence or committed or failed to perform any act under, and no event or condition existscondition, which (with or without after notice, lapse passage of time or both) would constitute a or give rise to any such breach of or default under, thereunder or result in a termination thereof or would cause or permit the provisions acceleration or other changes of any Material Contract, except in each case for those violations, acts (right or failures to act) and defaults which, individually obligation or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice loss of any benefit thereunder. Complete and correct copies of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any each Material Contract has (Aincluding all modifications, amendments and supplements thereto and waivers thereunder) canceled or otherwise terminated, or threatened in writing have been made available to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectBuyer.
Appears in 1 contract
Sources: Sale Agreement (Emcore Corp)
Material Contracts. (a) Except (iSection 4.08(a) as filed as exhibits to the Company SEC Documents, (ii) for this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date hereof, neither Disclosure Schedules lists each of the Company nor any Subsidiary following Contracts of the Company is a party or any Company Subsidiary (together with all leases listed in Section 4.10(e) of the Disclosure Schedules, all such Contracts required to or is bound by any Contract:be so listed, collectively, the “Material Contracts”):
(i) each Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders expressly limits or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect restricts the ability of the Company or any Company Subsidiary to compete or otherwise to conduct the Business as presently conducted in any material manner or place, except those restrictions imposed under the Gaming License or any applicable restrictions imposed by applicable Laws;
(ii) each Contract of the Company or any Company Subsidiary requiring performance by any party more than one (1) year from the Signing Date and which cannot be cancelled by the Company without penalty or without more than one hundred eighty (180) days’ notice;
(iii) each Contract that obligates the Company or any Company Subsidiary to compete pay an amount in excess of $250,000 during any twelve (12)-month period after the Signing Date;
(iv) each Contract relating to Indebtedness (including guarantees, letters of credit, comfort letters and sureties or engage in other bonds) of the Company or any line Company Subsidiary;
(v) each Contract that relates to the sale of business any of the Company’s or to compete with any Person in any geographic areaCompany Subsidiary’s assets, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” business or similar provisions, (C) a right for consideration in excess of first refusal $500,000 or right of first offer or similar right that limits the ability contains any ongoing obligations of the Company or any of its Subsidiaries Company Subsidiary;
(vi) each Contract that relates to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” capital expenditures or other contingentpurchase of any materials, deferred supplies, equipment, other assets or fixed payment obligation of properties, or services that requires an annual expenditure by the Company and its Subsidiariesof more than $250,000 for any project or series of related projects (or groups of related Contracts therefor);
(vii) each Contract that creates a joint venture, in each case, that is material to the Company and its Subsidiaries, taken as a wholelimited liability company or partnership;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of each Contract between the Company or any Subsidiary of Company Subsidiary, on the Companyone hand, and Seller or any guarantee by Related Party of Seller (other than the Company or of its Subsidiaries of any Company Subsidiary), on the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company)other hand;
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent each collective bargaining agreement or other rights in Contract with any labor organization, union or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant association to which the Company or any Company Subsidiary received licensing revenues for is a party or by which the fiscal year ended January 31Company or any Company Subsidiary is bound;
(x) each Contract that grants any Person any (A) exclusive license, 2024 supply, distribution or other rights, (B) exclusive rights to purchase any Company products, or (C) any “most favored nation” rights;
(xi) each settlement agreement that has ongoing obligations; and
(xii) each Contract with any Governmental Authority, including any redevelopment agreement, agreement conferring Tax benefits to the Company, and any Tax increment financing agreements or related arrangements. Notwithstanding the above, Material Contracts shall not include any of the following: (A) Organizational Documents; (B) Contracts relating to commercial “off the shelf” or “shrink-wrap” software; (C) Contracts relating to employee health or welfare benefits, including those relating to the administration of employee health or welfare benefits, which are listed in excess Section 4.19(a) of $1,000,000the Disclosure Schedule; (D) Contracts which, other than non-exclusive licenses granted by their terms, are terminable by the Company within thirty (30) days without penalty; and (E) Contracts relating to customers trade payables incurred in the ordinary course of businessbusiness consistent with past practices.
(b) True and correct copies of each Material Contract have been or, and/or (C) that is otherwise material in the case of Contracts entered into after the Signing Date will be, made available to Buyer. Neither the Company and its Subsidiaries taken as nor any Company Subsidiary is in breach of, or default under, any Material Contract that could reasonably be expected to result in a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted material loss to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may beSubsidiary, and, to the Knowledge of Seller, as of the CompanySigning Date, each no other party to a Material Contract is in breach of, or default under, any Material Contract that could reasonably be expected to result in a material loss to the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received any written notice alleging a default or breach under any such Material Contract, except where such default or breach, individually or in the aggregate, has not resulted in or would not reasonably be expected to have a Material Adverse Effect. Each Material Contract is valid, binding and enforceable on the Company or a Company Subsidiary in accordance with its terms, and to the Knowledge of Seller, the other parties thereto, and (B) in full force and effect, except to the extent that (i) as the failure to be so valid, binding or enforceable, individually or in the aggregate, has not resulted and would not be reasonably expected to have a Material Adverse Effect or (ii) such validity, binding or enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Applicable Law applicable Laws affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually regardless of whether enforceability is considered in a Proceeding at law or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectequity).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Leucadia National Corp)
Material Contracts. (a) Except Section 3.14 of the Disclosure Schedule contains a list of all Contracts of the types described below that are currently in effect with respect to the Company or any Subsidiary:
(1) all employment and consulting Contracts or Contracts providing for severance, retention or change of control payments to employees or consultants;
(2) all Contracts (or group of related Contracts) or options to sell, license (as licensor) or lease (as lessor) any property or asset of the Company or any of its Subsidiaries in excess of $500,000 per year, except for sales of inventory and other sales in the Ordinary Course of Business;
(3) all Contracts (or group of related Contracts) pursuant to which the Company or any of its Subsidiaries (i) possesses or uses, or has agreed to acquire, license (as filed licensee) or lease (as exhibits to the Company SEC Documentslessee), any property or asset and (ii) for this Agreement and the other agreements entered into is required to make payments, accrue expenses or incur charges in connection with the transactions contemplated hereby and excess of $500,000 per year;
(iii4) for Company Employee Plansall Contracts (or group of related Contracts), as plans or programs pursuant to which payments, or an acceleration of the date hereofor increase in benefits, neither the Company nor any Subsidiary may be required upon or after a change of control of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)its Subsidiaries;
(ii5) that is with the ten any other Contract (10) largest customers or group of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, related Contracts other than purchase orders or statements of work or invoices entered into in the ordinary course Ordinary Course of business, and other similar Contracts that are ancillary to Contracts pursuant to Business) the performance of which revenue is paid involves payment or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 rebates by the Company or any of its Subsidiaries outside of the ordinary course consideration in excess of business pursuant to which the Company or its Subsidiaries have material continuing obligations;$500,000 per year; or
(vii6) containing Contracts (Aor group of related Contracts) under which a covenant or Person (other provision limiting in any material respect the ability of than the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xviSubsidiary) is with advanced or loaned an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiariesamount exceeding $250,000.
(b) Each Contract The Company has heretofore made available to the Buyer a true, complete and correct copy of each of the type Contracts described above above, each as in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding effect on the Company or the applicable Subsidiary of date hereof, and all amendments and supplements thereto and all waivers thereunder. Neither the Company, as the case may be, andany of its Subsidiaries nor, to the Knowledge of the Company's Knowledge, each any other party theretois in default under, and (B) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision breach or violation of, or committed or failed to perform any act under, and no nor has an event or condition exists, which occurred that (with or without notice, lapse of time or both) would constitute a breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with by the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries under any material Contract, other thanthan such defaults, in each case, breaches and violations as would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Except Section 3.16(a) of the SALIC Disclosure Schedule contains a true, complete and correct list of each Contract in force as of the date hereof (other than and excluding any Reinsurance Contract or Reserve Financing Contract (which are addressed in Section 3.21)) to which any SALIC Group Company is a party or under which any of the SALIC Group Companies has material continuing obligations as of the date hereof that meets any of the following criteria (each, a “Material Contract”):
(i) as filed as exhibits to requires expenditures by a SALIC Group Company involving consideration in excess of One Hundred Thousand Dollars ($100,000) in any twelve (12)- month period or the delivery by the SALIC Group Company SEC Documents, or their Affiliates of goods or services with a fair market value in excess of One Hundred Thousand Dollars ($100,000);
(ii) provides for this Agreement and the other agreements entered into payments or goods or services to be received by a SALIC Group Company in connection with the transactions contemplated hereby and excess of One Hundred Thousand Dollars ($100,000) in any twelve (12)-month period;
(iii) relates to the incurrence by a SALIC Group Company of any indebtedness, other than such Contracts entailing past or reasonably expected future amounts less than One Hundred Thousand Dollars ($100,000) in the aggregate;
(iv) relates to the acquisition or disposition by a SALIC Group Company outside the Ordinary Course of Business of any material assets or any material business (whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise) to the extent any actual or contingent material obligations of the SALIC Group Company thereunder remain in effect, other than transactions involving Investment Assets;
(v) grants a right of first refusal or first offer or similar right or materially restricts or limits a SALIC Group Company’s ability to freely engage in any business, compete with other entities, market any product or solicit employees or customers, or provides for “exclusivity” or any similar requirement, in each case in favor of any Person other than the subject SALIC Group Company;
(vi) is a capital maintenance Contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the SALIC Group Companies or any capital maintenance Contract or similar agreement pursuant to which the SALIC Group Companies have agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance Contract;
(vii) is a collective bargaining agreement or other Contract with any labor organization, union or association;
(viii) relates to the license or sublicense to a SALIC Group Company of any material Intellectual Property or the license from a SALIC Group Company of any material Intellectual Property, other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases;
(ix) is a written Contract with any Employee Plansrelated to such Employee’s employment with any of the SALIC Group Companies;
(x) is a Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of profits, losses, costs or liabilities by the SALIC Group Companies with any other Person or relating to the formation, creation, operation, management or control of any partnership or joint venture in respect of the business of the SALIC Group Companies;
(xi) is an investment management agreement;
(xii) is a material indemnification agreement or guarantee in respect of the business of the SALIC Group Companies;
(xiii) is entered into with any Governmental Authority;
(xiv) provides for exclusivity or any similar requirement or includes a “most favored nation” provision;
(xv) contains change of control provisions;
(xvi) contains notification or termination provisions related to the insolvency of a Debtor, other than to the extent such provision would be unenforceable pursuant to Section 365(e)(1) of the Bankruptcy Code;
(xvii) requires any of the SALIC Group Companies to maintain a minimum rating or has a ratings trigger;
(xviii) provides for any obligation to loan or contribute funds to, or make investments in, another Person;
(xix) is a SALIC Intercompany Agreement or a Terminating Intercompany Agreement;
(xx) is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit or the direct or indirect guarantee of any obligation for borrowed money of any Person or any other liability in respect of indebtedness for borrowed money of any Person, in each case, involving liabilities in excess of One Hundred Thousand Dollars ($100,000) or any direct or indirect guarantee of any obligation or liability in respect of a Benefit Plan;
(xxi) provides for a material operation or function of the business of the SALIC Group Companies to be outsourced to, or otherwise performed by, a third Person; or
(xxii) is an obligation to enter into any of the foregoing.
(b) Except as set forth on Section 3.16(b) of the SALIC Disclosure Schedule, with respect to each Material Contract, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) each Material Contract is a valid and binding obligation of the applicable SALIC Group Company and, to the Knowledge of SALIC, as of the date hereof, neither each other party or parties thereto, in accordance with its terms and is in full force and effect, subject to the Bankruptcy and Equity Exceptions, and is enforceable against the applicable SALIC Group Company nor any Subsidiary and, to the Knowledge of SALIC, each other party thereto in accordance with its terms, subject to the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
Bankruptcy and Equity Exceptions, (ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,000;
(vi) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by the Company or any of its Subsidiaries outside of the ordinary course of business pursuant to which the Company or its Subsidiaries have material continuing obligations;
(vii) containing (A) a covenant or other provision limiting in any material respect the ability of the Company or any Subsidiary of the Company to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ agreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may beSALIC Group Company is not, and, to the Knowledge of the CompanySALIC, each no other party theretothereto is, in default or breach in any material respect in the performance, observance or fulfillment of any obligation, covenant or condition contained in each of the Material Contracts, and (Biii) in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the CompanySALIC, none of the other parties thereto havethere does not exist any event, violated any provision of, condition or committed omission that would constitute such a default or failed to perform any act under, and no event or condition exists, which breach (with or without notice, lapse of time or notice or both); provided, however, that this Section 3.16(b) would constitute a breach of does not apply to any Terminating Intercompany Agreement or default under, the provisions of any other Material Contract, except in each case for those violations, acts Contract to be rejected or terminated pursuant to this Agreement.
(or failures to actc) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, Prior to the Knowledge date of the Companythis Agreement, neither the Company nor any Subsidiary copies of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any each Material Contract has (A) canceled or otherwise terminated, or threatened in writing have been made available to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse EffectPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Except (i) as filed as exhibits to Section 3.16 of the Company SEC DocumentsDisclosure Schedule sets forth a true, (ii) for this Agreement correct and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Planscomplete list, as of the date hereof, neither of all currently active Contracts (or group of related Contracts) (other than purchase orders and invoices that are part of, issued under or supplemental to other Contracts required to be disclosed under this Section 3.16) to which the Company nor or any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractby:
(ia) that which is a “material contract” (as such term is defined in Item 601(b)(10) partnership, limited liability company, joint venture or similar agreement involving payments or commitments of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which revenue is paid or payable to capital by the Company or its Subsidiaries);
(iii) that is with the ten (10) largest vendors of the Company and its Subsidiaries during the fiscal year ended January 31, 2024 (as determined based on cost of goods and services paid to such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or payable by the Company);
(iv) that is a Government Contract;
(v) evidencing a capital expenditure for which future payments are required in excess of $5,000,0001,000,000 in the aggregate;
(vib) relating to the disposition or acquisition of any business, equity, or all or substantially all of the assets of any Person for aggregate consideration in excess of $5,000,000 by (i) under which the Company or any of its Subsidiaries outside has created, incurred, assumed or guaranteed Indebtedness; or (ii) that is an outstanding guarantee, letter of comfort, letter of assurance, keepwell, letter of credit, performance bond, assurance bond, surety agreement, indemnity agreement or any other from of assurance or guarantee or other obligation (a “Credit Support Obligation“);
(c) whereby the ordinary course Company or any of business pursuant its Subsidiaries has an obligation to make an investment in or loan to any Person;
(d) which are (i) collective bargaining agreements, or (ii) employment or consulting agreements providing for annual payments in excess of $150,000 per year (other than any Contract that is terminable within 90 days without the Company or its Subsidiaries have material continuing obligations;incurring any penalty, fee or other payment),
(viie) containing which are Contracts (Ai) a covenant for the development, purchase or the sale, supply or provision, of goods, steam, materials, energy, supplies or services, including operating, land management and resource management and repair and timber hauling or cutting; (ii) for the purchase or sale of any asset or securities in excess of $2,500,000; (iii) relating to franchise, brokerage, sales representation, distributorship, sales agency or other provision limiting in any material respect similar arrangements; (iv) with customers for the ability sale of goods and services; (v) for the purchase or lease of equipment or other personal property; or (vi) regarding shipping, transportation or storage of products of the Company or any Subsidiary of its Subsidiaries, in each of clauses (i), (iii), (iv), (v) and (vi) and with respect to each Contract, not capable of being fully performed or not terminable by the Company or its Subsidiaries without penalty or premium within a period of 90 calendar days and involving annual payments in excess of (A) $5,000,000, in the case of Contracts with customers and merchant distributors of the Company Company; (B) $10,000,000, in the case of Contracts with suppliers, including pulp and timber Contracts and Contracts regarding the purchase or sale of energy, steam, and power; and (C) $2,000,000 in the case of all other Contracts;
(f) which contain a covenant not to compete or engage in any line of business or to compete with any Person in any geographic area, other than any customary employee non-solicitation or no-hire clauses entered into in the ordinary course of business, (B) “most favored nation”, “exclusivity” or similar provisions, (C) a right of first refusal or right of first offer or similar right that limits material restriction on the ability of the Company or any of its Subsidiaries or the Business (including, without limitation, Purchaser or any of its Affiliates from and after the Closing) to sell, transfer, pledge compete or otherwise dispose provide any products or services generally in any market segment or geographic area;
(g) with Seller or any of assets, rights or properties or its Affiliates (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment obligation of than the Company and its Subsidiaries, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ixh) any hedging, swap, derivativewhich contain indemnification rights or obligations, or similar Contract;
(x) credit support relating to such indemnification rights or obligations, that is a license (or a covenant, consent or other rights could reasonably be expected to result in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than non-exclusive licenses granted to customers in the ordinary course of business, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiiii) that involves a relating to the development, ownership, licensing or use of any Intellectual Property Rights material joint venture, profit sharing, partnership or similar agreement from which to the business of the Company and its Subsidiaries (excluding software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $100,000 per year in the aggregate); and
(j) with employees containing severance payments, change of control payments, stay bonus, or any of its Subsidiaries recognized revenues other right to additional compensation or change in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation duties or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of job description triggered by this Agreement or (z) that subjects the transactions contemplated hereby. Each Contract required to be so listed on Section 3.16 of the Company or any Disclosure Schedule (each, a “Material Company Contract“) is, as of its Subsidiaries to any material ongoing requirements or restrictions the date hereof, (other than ordinary course confidentiality requirements or restrictions);
i) in full force and effect and is (xvii) any stockholders’ agreementa valid, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities binding and enforceable obligation of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(b) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or the applicable Subsidiary of the Company, as the case may be, and (iii) to the Knowledge of the Seller, a valid, binding and enforceable obligation of each other party thereto, in the case of clauses (ii) and (iii), subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and general principles of equity. True, correct and complete copies of all Material Company Contracts described above and existing as of the date hereof have been made available to Purchaser prior to the date hereof. Neither the Company nor any of its Subsidiaries is in material breach of or default under any such Contract, and no event or circumstance has occurred that, with the giving of notice or the lapse of time or both, would constitute such a material breach or default and, to the Knowledge of the CompanySeller, each no other party thereto, and (B) to any such Contract is in full force and effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually material breach thereof or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company has, and, to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act under, default thereunder and no event or condition existscircumstance has occurred that, which (with the giving of notice or without notice, the lapse of time or both) , would constitute such a material breach of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries other than, in each case, as would not reasonably be expected to have a Material Adverse Effectdefault.
Appears in 1 contract