Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”): (i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; (ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business; (iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract; (iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business); (v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization; (vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually; (vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement; (viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products); (ix) any Contract under which any Governmental Body has any material rights; (A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person; (xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company; (xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more; (xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property; (xiv) the Company Intellectual Property Agreements; and (xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and (xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect. (b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 3 contracts
Sources: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Material Contracts. (a) Part 2.9(a) Except for the contracts described in or filed as an exhibit to the Company SEC Documents, neither Company nor any of its Subsidiaries is a party to or bound by any of the following (together with the foregoing contracts described in or filed as an exhibit to the Company Disclosure Schedule lists SEC Documents, collectively, the "Material Contracts"):
(i) any contract of participation with any other bank in any loan in excess of $500,000 or any sales of assets of Company or its Subsidiaries with recourse of any kind to Company or any of its Subsidiaries except the sale of mortgage loans, servicing rights, repurchase or reverse repurchase agreements, securities or other financial transactions in the ordinary course of business;
(ii) any agreement providing for the sale or servicing of any loan or other asset which constitutes a "recourse arrangement" with respect to credit quality under applicable regulation or policy promulgated by a Governmental Entity (except for agreements for the sale of guaranteed portions of loans guaranteed in part by the U.S. Small Business Administration and related servicing agreements);
(iii) any contract or agreement for the acquisition of the securities or any material portion of the assets of any other person or entity in each Contract case outside the ordinary course of business;
(iv) any contract or agreement for the purchase of materials, supplies, equipment or services involving in the case of any such contract or agreement more than one million dollars ($1,000,000) over the life of the contract;
(v) any contract, agreement or instrument that expires or may be renewed at the option of any person other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, Subsidiaries so as of to expire more than one year after the date of this Agreement that involve payment of more than one million dollars ($1,000,000) per year;
(vi) any material 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 (other than deposit contracts, Federal Home Loan Bank advances and other agreements entered into in the ordinary course of Company's business) or any leasing transaction of the type required to be capitalized in accordance with generally accepted accounting principles;
(vii) any contract or agreement for capital expenditures in excess of one million dollars ($1,000,000) in the aggregate;
(viii) any contract or agreement limiting the freedom of Company or any of its Subsidiaries to engage in any line of business or to compete with any other Person as that term is defined in the Exchange Act, or under the constitution, laws, rules or regulations of any SRO, or any confidentiality, secrecy or non-disclosure contract or agreement;
(ix) any contract or agreement involving payments during any twelve-month period of one million dollars ($1,000,000) or more, pursuant to which Company or any of its Subsidiaries is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property;
(x) any contract or agreement with any person with whom Company or any of its Subsidiaries does not deal at arm's length within the meaning of the Code;
(xi) 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 other than those entered into in the ordinary course of operating a banking business; or
(xii) any material agreement which would be terminable other than by Company or its Subsidiaries as a result of the consummation of the transactions contemplated by this Agreement.
(b) Each of Company and its Subsidiaries has performed all of the material obligations required to be performed by it and is entitled to all accrued benefits under, and is not alleged to be in default in respect of, each Material Contract to which it is a party or by which it is bound. Each of the Material Contracts is in full force and effect, unamended, and there exists no default or event of default or event, occurrence, condition or act, with respect to Company or any of its properties or assets are otherwise bound of the following categories (such Contracts required Subsidiaries or, to be disclosed under Part 2.9(a) of the Company Disclosure ScheduleCompany's knowledge, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating with respect to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencycontracting party, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision of, or taken or failed to take any act which, with or without the giving of notice, the lapse of time, the time or boththe happening of any other event or condition, would constitute become a default under the provisions of, any Material Contract, and, to the Knowledge or event of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1True, 2021, the Company has not received any written notice or, to the Knowledge correct and complete copies of the Company, other communication regarding any actual or possible violation or breach of, or default under, any all Material Contract by the Company. The Company has Contracts have been made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific or filed as an exhibit to provisions that make such Contract a Material Contract)the Company SEC Documents.
Appears in 3 contracts
Sources: Merger Agreement (E Trade Group Inc), Merger Agreement (Telebanc Financial Corp), Merger Agreement (E Trade Group Inc)
Material Contracts. (a) Part 2.9(aSection 3.15(a) of the Company Disclosure Schedule lists sets forth a list, as of the date hereof, and the Company has made available to Parent (or Parent’s outside counsel) true, correct and complete (subject to any necessary redactions) copies of, each Contract Contract, 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 properties or assets is bound that:
(i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) contains any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries or any covenants that limit in any material respect the freedom of the Company or any of its Subsidiaries to compete or engage in any line of business or in any geographic area;
(iii) provides for or governs the formation, creation, operation, management or control of any partnership, joint venture or similar profit-sharing arrangement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) involves (A) the use or license by the Company or any of its Subsidiaries of any material Intellectual Property Rights owned by a third party (other than shrink-wrap, click-wrap and off-the-shelf or commercially available software and non-disclosure agreements entered into in the ordinary course of business consistent with past practice), or (B) the joint development of products or technology with a third party;
(v) involves the license by the Company or any of its Subsidiaries of any of its material Intellectual Property Rights to any third party (other than (A) as ancillary to a sale of products to customers or the purchase or use of equipment, reagents or other materials and (B) any materials provided under material transfer agreements entered into in the ordinary course of business);
(vi) constitutes a manufacturing, supply, distribution, research, development, clinical (including clinical research organization), commercialization or marketing agreement that provides for minimum payment obligations by the Company Plan set forth and/or any of its Subsidiaries of at least $250,000 in Part 2.15(athe aggregate in any prospective twelve (12) month period;
(vii) other than solely among wholly owned Subsidiaries of the Company, relates to indebtedness of the Company Disclosure Scheduleor any of its Subsidiaries, whether incurred, assumed, guaranteed or secured by any asset, having an outstanding principal amount in excess of $250,000 in the aggregate;
(viii) that is in effectany agreement relating to an acquisition, and divestiture, merger or similar transaction that has not expired continuing indemnification or been terminated other contingent payment obligations;
(ix) constitutes a Plan pursuant to which the Company or any Subsidiary is or may become obligated to (A) make any severance, termination, tax gross-up or similar payment to any Company Employee or any spouse or heir of any Company Employee, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary, bonus or compensation paid in accordance the ordinary course of business consistent with past practice) to any Company Employee or (C) grant or accelerate the vesting of, or otherwise modify, any Company Options and Company RSU Award other than accelerated vesting as required by Company Plans;
(x) is a settlement, conciliation or similar agreement with or before any Governmental Body and pursuant to which the Company or any of its terms, as of Subsidiaries will be required after the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company pay consideration in excess of $100,000 250,000 in any calendar year, including any such Contract (or group the aggregate in respect of such Contracts that are related) for agreement or require the purchase, lease Company or sale any Subsidiary to conduct its business in accordance with any material obligations or limitations from and after the execution of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticesuch agreement;
(iixi) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guarantyPlan, surety requires or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of permits the Company or providing for the creation of or granting any Lien upon any Subsidiary of the property Company, or assets any successor, to, or acquirer of the Company, to make any payment to another person as a result of a change of control of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as a “Change of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of BusinessControl Payment”) or (2) obligating gives another Person a right to receive or committing the Company elect to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractreceive a Change of Control Payment;
(ivxii) provides for: (A) reimbursement of any Contract creating Company Employee for, or purporting advancement to create any partnershipCompany Employee of, alliance material legal fees or joint venture or any sharing of profits or losses by the Company other material expenses associated with any Third PartyLegal Proceeding or the defense thereof; or (B) indemnification of any Contract that provides for “earn-outs” officer, director or other contingent payments by or to employee of the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services Subsidiary of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which obligates the Company is or any of its Subsidiaries to pay future milestones, royalty payments or similar payments and that are not included in the lessee In-bound Licenses or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertyOut-bound Licenses;
(xiv) grants to any Person a right of first refusal or option to purchase or acquire any material assets from the Company Intellectual Property Agreements; andor its Subsidiaries;
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by between the Company or any successor thereto in excess Subsidiary of $100,000the Company, individually or in on the aggregateone hand, and a Governmental Body, on the other; and
(xvi) involves any Contract not otherwise listed collective bargaining agreement or required other works council, trade union, labor association, employee representative or collective labor contract with respect to be listed in Part 2.9(a) its employees of the Company Disclosure Schedule or its Subsidiaries (including Company Intellectual Property collectively, the “Labor Agreements”). Each Contract of the type described in clauses (i) that, if terminated, or if such Contract expired without being renewed, would have through (xvi) above is referred to herein as a Company “Material Adverse EffectContract”.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to To the Knowledge of the Company, Company (i) each Material Contract is valid and binding and enforceable against on the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of the Company, against each other party thereto other than the Company, and is in accordance with its termsfull force and effect, subject to the Enforceability Exceptions, (Aii) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contractand its Subsidiaries have, and, to the Knowledge of the Company, no each other party thereto has, performed and complied in all material respects with all obligations required to such be performed or complied with by them under each Material Contract to date, (iii) there is in violation of any provision, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a no default under the provisions of any Material Contract. Since January 1, 2021, Contract by the Company has not received or any written notice of its Subsidiaries, or, to the Knowledge of the Company, by any other communication regarding party thereto, and (iv) to the Company’s Knowledge, neither the Company nor any actual or possible violation or breach of, or default under, of its Subsidiaries has received any written notice from any third party to any Material Contract by the Company. The Company has made available that such party intends to Parent true and complete copies of each terminate, or not renew, such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Horizon Pharma PLC), Merger Agreement (Raptor Pharmaceutical Corp)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date For purposes of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound Agreement, each of the following categories (such Contracts required shall be deemed to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “constitute a "Material Contracts”):Contract":
(i) any Company Contract (or group that is required by the rules and regulations of related Contracts), other than a Company Plan, that requires future payments by or the SEC to be filed as an exhibit to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeSEC Documents;
(ii) any Company Contract (A) relating to the acquisition employment of, or disposition by the performance of services by, any Company Employee or former employee, director or contractor that requires current payments of base salary in excess of $200,000 on an annual basis to any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); Person, (B) any Contract relating to the acquisition terms of which currently obligate or disposition by may in the future obligate the Company of to make any operating business severance, termination or assets (other than pursuant similar payment to non-exclusive licenses any Company Employee or grants of non-exclusive rights) under which the Company has any executory covenants former employee, director or indemnification or other obligations or rights (including put or call options); contractor or (C) any Contract under pursuant to which the Company have is currently obligated to make any indemnification obligationsbonus payment in excess of $50,000 to any Company Employee or former employee, other than any such Contracts entered into in the Ordinary Course of Businessdirector or contractor;
(iii) any guarantyCompany Contract relating to the acquisition, surety transfer, development, distribution, resale, licensing or performance bond sharing of any Intellectual Property Rights owned by a third party that are used in the development of the Company Products, incorporated into the Company Products, or letter of credit issued or posted, as applicable, distributed by the Company; (B) Company in conjunction with the Company Products, or any Contract evidencing or relating Intellectual Property Rights material to Debt the conduct of the business of the Company or providing for the creation of or granting its Subsidiary as currently conducted consistent with past practice, but in each case excepting (Y) any Lien upon any of the property or assets of Intellectual Property Rights that are (i) licensed to the Company under any third-party software license generally available to the public, (excluding Permitted Liens)ii) assigned to the Company from an employee, agent, consultant, or independent contractor in the ordinary course of business consistent with past practice, or (iii) provided to the Company pursuant to a non-disclosure or similar agreement entered into by the Company in the ordinary course of business consistent with past practice; and (CZ) any Contract Intellectual Property Rights that are (1i) relating to any loan or advance licensed by the Company to any Person which is outstanding as an end user customer pursuant to the Company's then current standard form of the date of this Agreement (other than immaterial advances to employees and consultants end-user licenses on a non-exclusive basis granted in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (ii) or (2) obligating or committing licensed from the Company to make any such loans an employee, agent, consultant, or advances; and independent contractor in the ordinary course of business consistent with past practice solely for purposes of performing services for or on behalf of the Company, or (Diii) any currency, commodity provided from the Company to a third Person pursuant to a non-disclosure or other hedging or swap Contractsimilar agreement entered into in the ordinary course of business consistent with past practice;
(iv) any Company Contract creating (A) relating to the acquisition, issuance, voting, registration, sale, or purporting to create transfer of any partnershipsecurities, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) providing any Contract that provides for “earn-outs” Person with any preemptive right, right of participation, right of maintenance, or other contingent payments by any similar right with respect to any securities, or to (C) providing the Company that have not yet been paid or any of its Subsidiaries with any right of first refusal with respect to, or right to the repurchase or redeem, any securities, except for Contracts evidencing Company (excluding any contingent payments arising pursuant to recruiting agreements for Stock Options and Company Service Providers entered in into in the Ordinary Course of Business)RSUs;
(v) any collective bargaining agreement Company Contract which generated more than $250,000 in revenues for the Company or similar Contract with any trade unionof its Subsidiaries in the fiscal year ending December 31, works council or other labor organization2011;
(vi) any offer letter, employment agreement, independent contractor agreement Company Contract that by its terms involves the payment or delivery of cash or other Contract with any current Company Service Provider pursuant to which the Company is consideration in an amount or reasonably could be obligated to pay compensation (excluding variable compensation) having a value in excess of $100,000 annually;250,000 in any individual fiscal year which is not terminable without material penalty by the Company on less than 90 days' notice; and
(vii) any Company Contract that is a settlementevidencing, conciliationgoverning, or similar agreement with relating to indebtedness for borrowed money or creating any Governmental Body guaranty or that imposes any monetary or other material obligations upon suretyship obligation of the Company to or any Governmental Body after of its Subsidiaries not entered into in the date ordinary course of this Agreementbusiness;
(viii) all joint ventureany Company Contract to which any director, partnership (involving sharing officer, or Affiliate of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company or any of its Subsidiaries are parties or beneficiaries and that are based on sales of goods or services other involve more than $50,000, except for the Company Products)Option Plans, the Company Stock Options, the Company RSUs, the Company Employee Agreements and the Company Employee Plans;
(ix) any Company Contract under which constituting, incorporating, or relating to any Governmental Body has any material rightswarranty, indemnity, or similar obligation, except for warranties, indemnities or similar obligations substantially identical to those in the standard forms of end-user licenses previously delivered by the Company to Parent;
(Ax) any Company Contract containing covenants restricting which provides for indemnification of any officer, director or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personemployee;
(xi) any Company Contract involving a sales agentrelating to any currency, representativeinterest rate, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Companyother hedging activity;
(xii) any Company Contract involving commitments to make capital expenditures containing "standstill" or to Contract, purchase or sell assets involving $100,000 or moresimilar provisions;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating Company Contract to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company any Governmental Body is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertya party;
(xiv) any Company Contract that in any way purports to restrict the business activity of the Company Intellectual Property Agreements; andor any of its Subsidiaries or to limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person;
(xv) any Company Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) requiring that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000its Subsidiaries give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, individually or in the aggregateprior to entering into any discussions, agreement, arrangement, or understanding relating to any Acquisition Transaction or similar transaction; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) thatContract, if terminated, a breach or if termination of such Contract expired without being renewed, would reasonably be expected to have a Company Material Adverse Effect.
(b) With respect to each Each Material Contract listed is valid and in Part 2.9(a) of the Company Disclosure Schedulefull force and effect, such Material Contract is, to the Knowledge of the Company, binding and is enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (Ai) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (Bii) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations .
(i) The Company has not violated or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision ofbreached, or taken or failed to take committed any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions ofunder, any Material Contract, and, (ii) to the Knowledge of the Company's Knowledge, no other party to such Material Contract is in violation of any provisionPerson has violated or breached, or taken or failed to take committed any act whichdefault under, with or without notice, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, and (iii) neither the Company nor any of its Subsidiaries has not received any written notice or, to the Knowledge of the Company, or other communication regarding any actual or possible material violation or breach of, or default under, any Material Contract by Contract.
(d) To the Company's Knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to (i) result in a material violation or breach of any provision of any Material Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract, (iv) give any Person the right to accelerate the maturity or performance of any Material Contract, (v) result in the disclosure, release, or delivery of any Company source code, or (vi) give any Person the right to cancel, terminate or modify any Material Contract.
(e) Part 3.10(e) of the Company Disclosure Schedule lists all Material Contracts as of the Agreement Date. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contractthereto).
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (SRS Labs Inc), Merger Agreement (Dts, Inc.), Merger Agreement (SRS Labs Inc)
Material Contracts. (a) Part 2.9(aFor purposes of this Agreement, “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company Disclosure Schedule lists (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each Contract (case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company Plan set forth is obligated to make payment or incur costs in Part 2.15(aexcess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company Disclosure Schedule) that is in effector its Subsidiaries, and that has not expired or been terminated enforceable against it in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets and are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees full force and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its termseffect, subject to (A) Laws laws of general application relating to bankruptcy, insolvency insolvency, fraudulent transfer, reorganization, moratorium and the relief of debtors similar laws relating to or affecting creditors’ rights generally and (B) rules of Law law governing specific performance, injunctive relief and or other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to havelimitations of public policy, individually or in the aggregate, a Company Material Adverse Effect, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is not in violation of any provision of, or taken or failed to take perform any act which, with or without notice, lapse of time, or both, would constitute a default obligation required under the provisions of, any Material Contract, andexcept as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the Knowledge knowledge of the Company, no other party to such Material Contract any third party, is in violation of any provisionbreach, or taken or failed to take any act whichhas received written notice of material breach, with or without notice, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract except as disclosed in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Schedule 3.13.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Strobeck Matthew), Securities Purchase Agreement (Feinberg Family Trust), Securities Purchase Agreement (Vermillion, Inc.)
Material Contracts. (a) Part 2.9(aSection 3.17(a) of the Disclosure Letter lists all contracts, agreements, commitments, arrangements, leases (including with respect to personal property) and other instruments to which the Company Disclosure Schedule lists each Contract or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (other than any Company Plan set forth in Part 2.15(aPlans) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):that:
(i) any Contract (are or group of related Contracts), other than a Company Plan, that requires future payments would be required to be filed by or to the Company in excess as a “material contract” pursuant to Item 601(b)(10) of $100,000 in any calendar year, including any such Contract (Regulation S-K under the Securities Act or group of such Contracts that are related) for disclosed by the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty Company on 90 days’ or shorter noticea Current Report on Form 8-K;
(ii) contain non-compete covenants that restrict in any Contract relating to material respect the acquisition or disposition by operations of the Company or any of its Subsidiaries (or which, immediately following the consummation of the Merger, would restrict in any operating business material respect the operations of the Surviving Corporation or assets (other than pursuant to non-exclusive licenses or grants any of non-exclusive rightsits Affiliates); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, relate to the formation, creation, operation, management or control of any guarantypartnership or joint venture that is material to the business of the Company and its Subsidiaries, surety taken as a whole;
(iv) relate to (A) indebtedness for borrowed money or performance bond the deferred purchase price of property and having an outstanding principal amount in excess of $20,000,000 as of December 31, 2006 or letter of credit issued or posted, as applicable, by the Company; (B) conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case in connection with which the aggregate actual or contingent obligations of the Company and its Subsidiaries under such contract are greater than $20,000,000;
(v) were entered into after September 30, 2006 or not yet consummated, and involve the acquisition from another Person or disposition to another Person, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration under such contract in excess of $20,000,000 (other than acquisitions or dispositions of assets in the ordinary course of business, including acquisitions and dispositions of inventory);
(vi) relate to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations), that are still in effect and, individually or in the aggregate, would reasonably be expected to result in payments in excess of $20,000,000;
(vii) contain material restrictions with respect to payment of dividends or any Contract evidencing distributions in respect of the capital stock or relating to Debt other equity interests of the Company or providing for the creation of or granting any Lien upon any of its Subsidiaries outside the property or assets ordinary course of the Company business;
(excluding Permitted Liens); (Cviii) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course ordinary course of Businessbusiness and an acquisition permitted under clause (vi) or (2) obligating or committing above, obligate the Company to make any such loans capital commitment or advances; and expenditure (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising including pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) relate to any Contract under which guarantee or assumption of other obligations or reimbursement of any Governmental Body has any material rightsmaker of a letter of credit, except for joint venture agreements and other agreements entered into in the ordinary course of business consistent with past practice;
(Ax) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year relate to the extent the Contract is not terminable without penalty on 90 days’ purchase or shorter noticesale of material real property; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;or
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related are license agreements that are material to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) business of the Company Disclosure Schedule) that contains and its Subsidiaries, taken as a change in control clause or similar provision that would be reasonably be expected whole, pursuant to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by which the Company or any successor thereto of its Subsidiaries is a party and licenses in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property AgreementsRights or licenses out Company Intellectual Property owned by the Company, other than license agreements for software that is generally commercially available. Each contract of the type described in clauses (i) that, if terminated, or if such Contract expired without being renewed, would have through (xi) is referred to herein as a Company “Material Adverse EffectContract.”
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or the Subsidiary that is not in violation of 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, any Material Contract, party thereto and, to the Knowledge knowledge of the Company, no each other party to such Material Contract thereto and is in violation of any provisionfull force and effect, and (ii) the Company and its Subsidiaries have performed and complied with all obligations required to be performed or taken or failed to take any act which, complied with or without notice, lapse of time, or both, would constitute a default by them under the provisions of any each Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or There is no default under, under any Material Contract by the Company or any of its Subsidiaries or, to the knowledge of the Company. The , by any other party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries, or to the knowledge of the Company, by any other party, except which has made available not had and would not reasonably be expected to Parent true and complete copies of each such Material Contract have, individually or in all material respects (including all modificationsthe aggregate, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (American Real Estate Partners L P), Merger Agreement (Lear Corp), Merger Agreement (Lear Corp)
Material Contracts. (a) Part 2.9(aExcept as reflected in the First South Financial Statements, disclosed in First South Exchange Act Reports or otherwise disclosed in Section 4.16(a) of the Company First South Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsMemorandum, as of the date of this Agreement to which Agreement, none of the Company First South Entities, nor any of their respective Assets, businesses, or operations, is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleaffected by, the “Material Contracts”):
or receives benefits under, (i) any employment, bonus, severance, termination, consulting, or retirement Contract (or group of related Contracts), other than a Company Plan, that requires future providing for aggregate payments by or to the Company any Person in any calendar year in excess of $100,000 in any calendar year25,000, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition borrowing of money by any First South Entity or disposition the guarantee by the Company any First South Entity of any operating business or assets such obligation (other than pursuant Contracts evidencing the creation of deposit liabilities, endorsements or guarantees in connection with presentation of items for collection, purchases of federal funds, advances from the Federal Reserve or Federal Home Loan Bank, entry into repurchase agreements fully secured by U.S. government securities or U.S. government agency securities, advances of depository institution Subsidiaries incurred in the ordinary course of First South’s business, and trade payables and Contracts relating to nonborrowings or guarantees made in the ordinary course of First South’s business), (iii) any Contract which prohibits or restricts any First South Entity or any personnel of a First South Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with vendors or customers or “shrink-exclusive licenses or grants of non-exclusive rightswrap” software licenses); , (Bv) any Contract relating to the acquisition provision of data processing, network communication, or disposition other technical services to or by any First South Entity, (vi) any Contract relating to the Company purchase or sale of any operating business goods or assets services (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course ordinary course of Business;
business and involving payments under any individual Contract or series of contracts not in excess of $25,000), (iiivii) any guarantyexchange-traded or over-the-counter swap, surety forward, future, option, cap, floor, or performance bond collar financial Contract, or letter of credit issued any other interest rate or postedforeign currency protection Contract or any Contract that is a combination thereof not included on its balance sheet, as applicable, by the Company; and (Bviii) any other Contract evidencing or relating that would be required to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating be filed as an exhibit to any loan or advance to any Person which is outstanding a Form 10-K filed by First South as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or pursuant to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a reporting requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
Exchange Act (xii) any Contract involving commitments together with all Contracts referred to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Propertyin Sections 4.11 and 4.15(a), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect“First South Contracts”).
(b) With respect to each Material First South Contract, (i) the Contract listed is in Part 2.9(afull force and effect; (ii) no First South Entity is in material Default thereunder; (iii) no First South Entity has repudiated or waived any material provision of the Company Disclosure Schedule, any such Material Contract; (iv) no other party to any such Contract is, to First South’s Knowledge, in Default in any respect or has repudiated or waived any material provision thereunder; and (v) no consent which has not been or will not be obtained is required by a Contract for the Knowledge execution, delivery, or performance of this Agreement, the consummation of the Company, binding and enforceable against Merger or the Company and, to the Knowledge other transactions contemplated hereby. Section 4.16(b) of the Company, against each party thereto First South Disclosure Memorandum lists every consent required by any Contract involving an amount in excess of $100,000. All of the indebtedness of any First South Entity for money borrowed (other than deposit liabilities, purchases of federal funds, advances from the CompanyFederal Reserve or Federal Home Loan Bank, repurchase agreements fully secured by U.S. government securities or U.S. government agency securities, advances of depository institution Subsidiaries incurred in accordance with its termsthe ordinary course of First South’s business, subject to (A) Laws of general application and trade payables and Contracts relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations borrowings or defaults which have not had, and would reasonably be expected to have, individually or guarantees made in the aggregateordinary course of First South’s business) is prepayable at any time by such First South Entity without penalty, a Company Material Adverse Effect, the Company is not in violation of any provision of, premium 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)charge.
Appears in 3 contracts
Sources: Merger Agreement (Carolina Financial Corp), Merger Agreement (First South Bancorp Inc /Va/), Merger Agreement (Carolina Financial Corp)
Material Contracts. (a) Part 2.9(aOther than as set forth on Section 4.10(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Partner Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsrespect to the Partner Contributed Business, no Partner Party as of the date of this Agreement to which the Company hereof is a party to or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):by:
(i) any Contract lease (whether of real or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess personal property) (A) providing for annual rentals of $100,000 in any calendar year, including any such Contract (200,000 or group of such Contracts more that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is cannot terminable without penalty be terminated on 90 not more than 60 days’ notice without payment by a Partner Party of any material penalty or shorter notice(B) under which it is a lessor of or permits any third party to hold or operate any property owned by it;
(ii) any Contract agreement for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by the Partner Parties of $200,000 or more or (B) aggregate payments by the Partner Parties of $200,000 or more, in each case that cannot be terminated on not more than 60 days’ notice without payment by the Partner Parties of any material penalty;
(iii) any sales, distribution or other similar agreement providing for the sale by the Partner Parties of materials, supplies, goods, services, equipment or other assets that provides for annual payments to the Partner Parties of $1,000,000 or more;
(iv) any material partnership, joint venture or other similar agreement or arrangement;
(v) any agreement relating to the acquisition or disposition by the Company of any operating material business (whether by merger, sale of stock, sale of assets or assets otherwise);
(other than pursuant vi) any agreement relating to non-exclusive licenses indebtedness for borrowed money or grants the deferred purchase price of non-exclusive rightsproperty (in either case, whether incurred, assumed, guaranteed or secured by any asset); , except any such agreement (A) with an aggregate outstanding principal amount not exceeding $1,000,000 or (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating subsequent to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractas permitted by Section 6.01;
(ivvii) any Contract creating material agreement that limits the freedom of the Partner Parties to compete in any line of business or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; Person or (B) in any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)area;
(vviii) any material agreement with or for the benefit of any Affiliate of Partner;
(ix) any material agreement with independent contractors, distributors, dealers, franchisers, manufacturers’ representatives, sales agencies or franchisees;
(x) any profit sharing, stock appreciation, deferred compensation, severance or other similar plan or arrangement for the benefits of its current or former managers, members, officers or employees;
(xi) any collective bargaining agreement or similar Contract other contract to or with any trade union, works council labor union or other labor organizationemployee representative of a group of employees;
(vixii) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company power of attorney that is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallycurrently effective and outstanding;
(viixiii) any Contract that is a settlement, conciliation, conciliation or similar agreement with any Governmental Body Authority, or that imposes any monetary or other material obligations upon the Company will require a Partner Party to any Governmental Body pay consideration after the date hereof in excess of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property200,000;
(xiv) any agreement relating to the Company Intellectual Property Agreements; andlicensing of material Partner Transferred IP and/or Partner Licensed IP by any Partner Party to any Person or by any Person to any Partner Party (other than non-exclusive licenses granted in the ordinary course of business);
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) agreement for the purchase of the Company Disclosure Schedule) that contains a change in control clause sand or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregatesand products; andor
(xvi) any Contract not otherwise listed contract for the employment or required to be listed in Part 2.9(a) engagement of the Company Disclosure Schedule (including Company Intellectual Property Agreements) thatany officer, if terminatedindividual employee, or if such Contract expired without being renewedother person or entity on a full-time, would have a Company Material Adverse Effectpart-time, consulting or other basis involving compensation in excess of $200,000 or agreement providing severance or other termination payments or benefits or relating to loans to officers, directors, employees or Affiliates.
(b) With respect Partner has made available to each Material Contract listed in Part 2.9(a) Baker Hughes true and complete copies of the Company Disclosure SchedulePartner Contributed Contracts, such Material in each case as amended or otherwise modified and in effect as of the date hereof. Each Partner Contributed Contract isis in full force and effect, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity and represents the Knowledge valid and binding obligations of the Company, binding and enforceable against the Company Partner or one of its Affiliates party thereto and, to the Knowledge knowledge of Partner, represents the valid and binding obligations of the Companyother parties thereto. Neither Partner nor any of its Affiliates has received written notice of cancellation of any Partner Contributed Contract, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws cancellation of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to havebe, individually or in the aggregate, material to the Partner Contributed Business. Except, in each case, where the occurrence of such breach or default would not reasonably be expected to be, individually or in the aggregate, material to the Partner Contributed Business taken as a Company Material Adverse Effectwhole, the Company is not in violation of 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(x) neither Partner, any Material Contract, andof its Affiliates nor, to the Knowledge knowledge of Partner, any other party thereto is in breach of or default under any such Partner Contributed Contract and (y) as of the Companydate of this Agreement, no other party to such Material Contract is in violation neither Partner nor any of any provision, 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 any Material Contract. Since January 1, 2021, the Company its Affiliates has not received any written claim or written notice or, to the Knowledge of the Company, other communication regarding material breach of or material default under any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Partner Contributed Contract).
Appears in 2 contracts
Sources: Contribution Agreement (BJ Services, Inc.), Contribution Agreement (Baker Hughes Inc)
Material Contracts. (a) Part 2.9(aSection 4.18(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the following contracts and agreements of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories Subsidiary (such Contracts required to be disclosed under Part 2.9(a) of contracts and agreements, together with the Company Disclosure ScheduleLeases, the being “Material Contracts”):
(i) any Contract all employment contracts that are not cancelable without penalty or further payment and without more than 30 days’ notice (or group of related Contracts), other than a Company Plan, that requires future payments by standard offer letters to employees being paid on an hourly basis or to the Company in excess with an annual base salary of less than $100,000 in which do not contain provisions for any calendar year, including any such Contract (or group payments upon a change of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticecontrol);
(ii) any Contract all contracts and agreements relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification indebtedness for borrowed money, guaranty, notes, purchase money debt or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businesssimilar undertaking;
(iii) all contracts and agreements that limit or purport to limit in any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by material respect the Company; (B) any Contract evidencing or relating to Debt ability of the Company or providing for the creation any Subsidiary to compete in any line of business or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to with any Person which is outstanding as or in any geographic area or during any period of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contracttime;
(iv) any Contract creating all contracts and agreements involving total annual payments or purporting to create any partnershipreceipts in excess of $2,500,000, alliance other than purchase orders issued or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into received in the Ordinary Course ordinary course of Business)business;
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with contracts between the Company that are based on sales of goods or services other than Company Products)any Subsidiary and a third party;
(ixvi) any Contract under which any Governmental Body has any material rightsall licenses of Intellectual Property to the Company or a Subsidiary (other than ordinary course “shrinkwrap” and other over-the-counter commercially available licenses), and all licenses of Intellectual Property by the Company or a Subsidiary to third parties;
(Avii) all contracts or agreements providing for the indemnification of any Contract containing covenants restricting person with respect to material liabilities or purporting to restrict competition which, in either case, have, would have such person’s service as an officer or purport to have the effect of prohibiting the Company, or, after the Closing, Parent director or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property AgreementsSubsidiary; and
(xvviii) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause all contracts and agreements between or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by among the Company or any successor thereto in excess Subsidiary, on the one hand, and a Stockholder or any Affiliate of $100,000a Stockholder, individually other than the Company or a Subsidiary, on the other hand, other than commercial agreements entered into with an Affiliate that is an operating company on an arms-length basis in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) ordinary course of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectbusiness.
(b) With respect to each Each Material Contract listed in Part 2.9(a) of is valid and binding on the Company Disclosure Scheduleor a Subsidiary, such Material Contract isas the case may be, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadcounterparties thereto, and would reasonably be expected to have, individually or is in the aggregate, a Company Material Adverse Effect, full force and effect. Neither the Company nor any Subsidiary is not in violation of any provision breach of, or taken or failed to take default under, in any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions ofmaterial respects, any Material ContractContract to which it is a party, and, to the Knowledge of the Company, no other party to such Material Contract Person is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, in any material respects, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Reliance Steel & Aluminum Co), Stock Purchase Agreement (PNA Group, Inc.)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan Except as set forth in Part 2.15(aSection 3.10(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with neither the Company nor any of its termsSubsidiaries is, as of the date of this Agreement to which the Company is Agreement, a party to or is bound by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):Contract:
(i) any Contract (that is a master agreement with a bank or group other provider of related Contracts), other than a transaction processing or settlement services for the funding of transfers initiated through services provided by the Company Plan, or its Subsidiaries that requires future payments by or is material to the operation of the Company in excess of $100,000 in any calendar yearand its Subsidiaries, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticetaken as a whole;
(ii) with the top ten (10) Money Transfer Agents by revenue and by transaction volume for the year ended December 31, 2021;
(iii) that relates to any Contract joint venture, partnership, limited liability or other similar agreements or arrangements relating to the acquisition formation, creation, operation, management or disposition by the Company control of any operating business joint venture or assets partnership (other than pursuant to non-exclusive licenses with or among wholly owned Subsidiaries of the Company);
(iv) that (a) is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness or deferred payment (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $5,000,000, (b) grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets a Lien (other than a Permitted Lien) or restricts the granting of Liens (except for leases and Contracts relating to indebtedness disclosed pursuant to clause (a)) on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, (c) provides for or relates to any interest, currency or hedging, derivatives or similar Contracts or arrangements (other than non-exclusive licenses speculative ▇▇▇▇▇▇ or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such forward Contracts entered into in the Ordinary Course ordinary course of Business;
business) or (iiid) restricts payment of dividends or any guaranty, surety or performance bond or letter distributions in respect of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt equity interests of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)its Subsidiaries;
(v) any collective bargaining agreement or similar Contract with any trade unionthat relates to the settlement of, works council or other labor organization;
(vi) any offer letterarrangements with respect to, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation former Claim (excluding variable compensationa) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary Entity (except settlements, or other material arrangements, for an immaterial monetary fine), (b) that materially restricts or imposes obligations upon the Company or its Subsidiaries, taken as a whole, or (c) which would require the Company or any of its Subsidiaries to any Governmental Body pay consideration of more than $5,000,000 after the date of this Agreement;
(vi) that is between the Company or any of its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ respective directors, officers (including any employment agreements and related Contracts with such officers), employees or stockholders who, to the knowledge of the Company, own one percent (1%) or more of the Shares, on the other hand;
(vii) that contains covenants or other provisions that (a) purport to limit or restrict, in any material respect, the ability of the Company or any of its Subsidiaries (or Parent or its affiliates after the Effective Time) to compete with any person in any business or in any geographic area, including any non-compete covenant or otherwise restrict the Company’s or any of its Subsidiaries’ ability to engage in any material line of business or (b) grant to the other party to such Contract (or a third party) exclusivity or “most favored nation” status (whether in terms of pricing or otherwise) which, in case of clause (a) or (b), is material to the Company and its Subsidiaries taken as a whole;
(viii) all joint venturethat grants any rights of first refusal, partnership rights of first offer or other similar rights to any person (involving sharing other than Parent or the Company) with respect to any material asset of profits) the Company or its Subsidiaries or that contains a put, call or similar Contracts (and not including any sharing of profits by a Third Party with right pursuant to which the Company that are based on sales or any of goods its Subsidiaries could be required to purchase or services other than Company Products)sell, as applicable, any equity interests of any person or assets of any person;
(ix) any Contract under which any Governmental Body has any material rights;
that is for the acquisition or disposition, directly or indirectly (A) any Contract containing covenants restricting by merger or purporting to restrict competition whichotherwise), in either case, have, would have of assets or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area capital stock or other jurisdictionequity interests of any person, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in pursuant to which the Company or any of its Subsidiaries has granted continuing “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricingearn out” or other similar term contingent payment obligations, indemnification or provision other obligations outstanding;
(x) that obligates the Company to make any capital expenditure or investment not contemplated by which another party to such Contract the Capital Expenditure Budget in excess of $5,000,000 in 2022 or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person$5,000,000 in 2023;
(xi) that requires the Company or any Contract involving of its Subsidiaries to provide any funds to or make any investment in (in each case, in the form of a sales agentloan, representative, distributor, reseller, middleman, marketer, broker, franchisor capital contribution or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale transaction) any person in excess of goods or services of the Company$20,000,000;
(xii) that grants, licenses or otherwise relates to rights to material Intellectual Property (including development of such Intellectual Property) or relates to material IT Assets (whether of the Company or any Contract involving commitments of its Subsidiaries, or of a third person), and in either case, is, individually or in the aggregate, material to make capital expenditures the operation of the business of the Company or its Subsidiaries (other than non-exclusive commercially available software licenses with annual fees of less than $5,000,000, Contracts for purchase, maintenance, support, hosting or lease of off-the-shelf IT Assets, or provision of related services, with annual fees of less than $5,000,000, or non-exclusive licenses to Contractservice providers, purchase or sell assets involving $100,000 or morecustomers and end users in the ordinary course of business consistent with past practice);
(xiii) that provides for indemnification of any leaseexecutive officer or director of the Company, sublease, rental or occupancy agreement, license (not relating other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertyParent;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(fthat is a Lease set forth on Section 3.16(b) of the Company Disclosure Schedule;
(xv) that contains a change any “material contract” (as defined in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation Item 601(b)(10) of the Contemplated Transactions and would result in payments Regulation S K promulgated by the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S K) with respect to the Company or any successor thereto in excess of $100,000and its Subsidiaries, individually or in the aggregate; andtaken as a whole;
(xvi) any employment, management, severance, termination, retention, transaction bonus, change in control, consulting, relocation, repatriation, expatriation or similar Contract with any former or current employee, officer, independent contractor, or director of the Company or any of its Subsidiaries that is not otherwise listed terminable at will without liability to the Company or required any of its Subsidiaries in excess of $250,000, pursuant to be listed which the Company or any of its Subsidiaries has or may have obligations (but excluding any such Contract in Part 2.9(aplace in accordance with statutory requirements);
(xvii) any Collective Bargaining Agreement; or
(xviii) except to the extent such Contract is described in clauses (i)-(xvii) above, that calls for annual aggregate payments by, or other consideration from (or annual aggregate payments, or other consideration, to) the Company and its Subsidiaries of more than $7,000,000; Each Contract, arrangement or commitment of the type described in this Section 3.10(a) (whether or not in effect on the date hereof), is referred to herein as a “Material Contract.” The Company has made available to Parent true, correct and complete copies of each Material Contract (including any amendments, schedules and exhibits thereto) in effect on the date hereof.
(b) Except as set forth in Section 3.10(b) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, and except as would not have or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or its applicable Subsidiary and in full force and effect, and, to the knowledge of the Company, is not valid and binding on the other parties thereto (except to the extent that, after the date hereof, a Material Contract no longer remains valid and binding due to the expiration of such Material Contract in violation accordance with its terms), (ii) the Company and each of any provision ofits Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, has performed all obligations required to be performed by it to date under each Material Contract and (iii) no event or taken condition exists which constitutes or, after notice or failed to take any act which, with or without notice, lapse of time, time or both, would constitute a breach or default under or give rise to any right of termination, cancellation, modification or acceleration on the provisions of, part of the Company or any Material Contract, andof its Subsidiaries or, to the Knowledge knowledge of the Company, no any other party to thereto, under any such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1December 31, 20212019 through the date hereof, neither the Company nor any of its Subsidiaries has not received any written notice or, of a material breach or material default from a counterparty to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available and no counterparty to Parent true and complete copies of each such a Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but has notified the Company or its Subsidiaries that it intends to terminate or not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract renew a Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Material Contracts. (a) Part 2.9(aSection 2.18(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) all of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following contracts to which the Company or any of its Subsidiaries is a party or by which any of its their respective properties or assets are otherwise bound bound: (i) employment, consulting, non-competition, severance, golden parachute or indemnification contract (including, without limitation, any contract to which the Company or any of its Subsidiaries is a party involving employees of the following categories Company or any of its Subsidiaries); (ii) licensing, merchandising or distribution agreements; (iii) contracts granting a right of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material properties or assets of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1992; (vi) contracts or agreements with any Governmental Entity; (vii) other contracts which materially affect the business, properties or assets of the Company and its Subsidiaries taken as a whole which are not otherwise disclosed in this Agreement or were entered into other than in the ordinary course of business; and (viii) all commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 4.1 hereof, the "Contracts"). The Company has delivered or otherwise made available to Parent true, correct and complete copies of the Contracts required to be disclosed under Part 2.9(alisted in Section 2.18(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts)together with all amendments, other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees modifications and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; supplements thereto and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant all side letters to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess a party affecting the obligations of $100,000 annually;any party thereunder.
(viib) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant Except as set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(fSection 2.18(b) of the Company Disclosure Schedule:
(i) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation Each of the Contemplated Transactions Contracts is valid and would result enforceable in payments accordance with its terms, and there is no default under any Contract so listed either by the Company or any successor thereto in excess of $100,000or, individually or in to the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) knowledge of the Company Disclosure Schedule (including Company Intellectual Property Agreements) thatCompany, if terminated, or if such Contract expired without being renewed, would by any other party thereto which could have a Material Adverse Effect, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or, to the knowledge of the Company, any other party which could have a Material Adverse Effect.
(bii) No party to any such Contract has given notice to the Company of or made a claim against the Company with respect to any material breach or material default thereunder.
(c) With respect to each Material Contract listed in Part 2.9(a) of those Contracts that were assigned or subleased to the Company Disclosure Scheduleby a third party, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party all necessary consents to such Material Contract is in violation of any provision, assignments 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)subleases have been obtained.
Appears in 2 contracts
Sources: Merger Agreement (American List Corp), Merger Agreement (Snyder Communications Inc)
Material Contracts. (a) Part 2.9(aNeither the Company nor any of its Subsidiaries is party to or bound by any:
(i) Contracts that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) Contracts relating to any partnership, strategic alliance or joint venture that is material to the Company Disclosure Schedule lists each Contract and its Subsidiaries, taken as a whole;
(other than any Company Plan set forth in Part 2.15(aiii) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement Contracts pursuant to which the Company is a party or by which any Subsidiary of the Company (A) has any material continuing “earn-out” or other material contingent payment obligations or (B) has any material indemnification obligations that, in either case, were not entered into in the ordinary course of business;
(iv) Contracts that (i) limit in any material respect the ability of the Company or any of its properties Subsidiaries to compete with or assets to provide services in any line of business or with any Person or in any geographic area or market segment or (ii) provide any standstill, “most favored nation” provision or equivalent preferential pricing terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject or a beneficiary thereof, which, in the case of clauses (i) and (ii), is material to the Company and its Subsidiaries taken as a whole;
(v) Contracts that are otherwise bound material Collective Bargaining Agreements;
(vi) Contracts with (A) any beneficial owner (as defined in Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of the following categories (such Contracts required to be disclosed under Part 2.9(a) 5% or more of any class of securities of the Company Disclosure Schedule, or any Company Subsidiary or (B) any Affiliate or “associate” or any member of the “Material immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any of the foregoing, including any shareholders agreement, investors’ rights agreement, registration rights agreement, tax receivables agreement (other than the Tax Receivable Agreement) or similar or related Contracts”):;
(ivii) Contracts that (A) are a material indenture, loan or credit Contract, loan note, mortgage Contract, letter of credit or other Contract representing, or any Contract (guarantee of, indebtedness for borrowed money of the Company or group any Subsidiary of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in 5,000,000, (B) is a guarantee by the Company or any calendar year, including any such Contract (or group Subsidiary of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business indebtedness for borrowed money or assets (similar obligation of any Person other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company or a wholly-owned Subsidiary of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which that become due and payable as a result of the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;transactions contemplated hereby; or
(iiiviii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider Contracts pursuant to which the Company or any of its Subsidiaries (i) obtain the right to use, or a covenant not to be sued under, any Intellectual Property (other than non-exclusive licenses for commercially available off-the-shelf software that is generally available for an annual cost of less than $100,000) or reasonably could (ii) grants the right to use, or a covenant not to be obligated sued under, Intellectual Property, in the case of each of clauses (i) and (ii), that is material to pay compensation (excluding variable compensation) in excess of $100,000 annually;the Company and its Subsidiaries, taken as a whole.
(viib) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the The Company has made available to any Governmental Body after Parent prior to the date hereof a complete and correct copy of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any each Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(aSection 5.20(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) thateach, if terminated, or if such Contract expired without being renewed, would have a Company “Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesContract”). Except for breaches, violations or defaults which have would not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Material Contracts is valid, binding and in full force and effect and (ii) neither the Company is not in violation nor any of its Subsidiaries, nor to the Knowledge of the Company, 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, breach or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material Contract, and since January 1, 2015, neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)
Material Contracts. (a) Part 2.9(aOn the date hereof, except for Contracts relating to entities, including without limitation partnership, joint venture, limited liability company, invested by but not Controlled by the Group Companies or as set forth in Section 4.12(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Schedule, none of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Group Company is a party to or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):by:
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or relating to the Company in excess formation, creation, operation, management or Control of $100,000 in any calendar yeara partnership, including any such Contract (joint venture, limited liability company or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticesimilar arrangement;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets involving a loan (other than pursuant accounts receivable from trade debtors in the ordinary course of business) or advance to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant travel and entertainment allowances to non-exclusive licenses or grants the employees of non-exclusive rights) under which the any Group Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person, of more than RMB15,000,000 in any calendar year on its face;
(iii) any guaranty, surety Contract involving indebtedness or performance bond obligation (contingent or letter otherwise) of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt Group Company of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other more than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractRMB15,000,000;
(iv) any Contract creating that involves, or purporting contains restrictions with respect to, (A) payment of dividends or other distributions with respect to create equity interests of any partnershipGroup Company, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) pledging of share capital of any Contract that provides for “earn-outs” Group Company, or other contingent payments (C) the issuance of a guaranty by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Group Company;
(v) any collective bargaining agreement Contract that contains a put, call or similar Contract with right pursuant to which any trade unionGroup Company could be required to purchase or sell, works council as applicable, any equity interests of any Person or other labor organizationmaterial assets;
(vi) any offer letter, employment agreement, independent contractor agreement non-competition Contract or other Contract with that purports to limit, curtail or restrict the ability of any current Group Company Service Provider pursuant to which compete in any geographic area, industry or line of business or grants exclusive rights to the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallycounterparty thereto;
(vii) any Contract involving copyright, or any other Intellectual Property that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after Group Company other than those in the date ordinary course of this Agreementbusiness;
(viii) all joint ventureany Contract that contains provisions on “most favored nations”, partnership (involving sharing or rights of profits) first refusal or similar Contracts (rights over any of the Ordinary Shares, the Series A Preferred Shares, the Series B Preferred Shares and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)Series C Preferred Shares;
(ix) any Contract under which that involves the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Governmental Body has Equity Securities of any material rightsGroup Company, or the acquisition or disposition of any assets or business by any Group Company involving an amount of not less than RMB15,000,000;
(Ax) any Contract containing covenants restricting or purporting pursuant to restrict competition which, in either case, have, would have or purport to have the effect which any Person obtains Control of prohibiting the any Group Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agentthe waiver, representativecompromise, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale settlement of goods or services of the Company;any Action over RMB15,000,000; or
(xii) any Contract involving commitments that is otherwise material to make capital expenditures or a Group Company. Each such Contract described above is referred to herein as a “Material Contract”, purchase or sell assets involving $100,000 or more;
(xiii) any leasewhich shall include, subleaseinter alia, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which all of the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(fControl Documents. Section 4.12(a) of the Company Disclosure Schedule) that Schedule contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation true, correct and complete list of the Contemplated Transactions all Material Contracts, and would result in payments a copy of each Material Contract has been provided by the Company or any successor thereto in excess of $100,000, individually or in to the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectPurchaser.
(bi) With respect to each Each Material Contract listed in Part 2.9(a) is a legal, valid and binding obligation of the each Group Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company that is a party thereto and, to the Knowledge best knowledge of the any Group Company, the other parties thereto, enforceable against each party thereto other than the Company, them in accordance with its terms, subject in each case subject, as to (A) Laws enforcement of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge Bankruptcy and Equity Exception, (ii) none of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice orGroup Companies nor, to the Knowledge best knowledge of the any Group Company, any other communication regarding any actual party thereto is in material breach or possible violation or breach of, or default under, any Material Contract by and no event has occurred or not occurred through any Group Company’s action or inaction or, to the best knowledge of any Group Company. The Company has made available to Parent true , the action or inaction of any third party, that, with or without due notice or lapse of time or both, would constitute a material breach or violation of, or default under, any Material Contract, and complete copies (iii) the Group Companies have not received any written claim or notice of each default, termination or cancellation under any such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Share Subscription Agreement (9F Inc.), Share Subscription Agreement (9F Inc.)
Material Contracts. (a) Part 2.9(a) of Except for this Agreement, except for Contracts filed as exhibits to the Company Disclosure Schedule lists each Contract (other than any Company Plan SEC Reports, or except as set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(aSection 3.17(a) of the Company Disclosure Schedule, none of the “Material Contracts”):Company or any of its Subsidiaries is a party to or bound by:
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments would be required to be filed by or to the Company as a “material contract” (as such term is defined in excess Item 601(b)(10) of $100,000 in any calendar year, including any such Contract (or group Regulation S-K of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeSEC);
(ii) any Contract relating to the acquisition purchase or disposition by sale of any Shares or other securities of the Company or any of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of BusinessCompany’s Subsidiaries;
(iii) any guarantyContract granting a right of first refusal, surety first offer or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractfirst negotiation;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture contracts, strategic cooperation or any partnership arrangements, or other agreements involving a sharing of profits profits, losses, costs or losses liabilities by the Company or any of its Subsidiaries with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)third party;
(v) any collective bargaining agreement Contract for the acquisition, sale or similar Contract lease (including leases in connection with financing transactions) of material properties or assets of the Company or any trade unionof its Subsidiaries (by merger, works council purchase or other labor organizationsale of assets or shares or otherwise) entered into since January 1, 2010 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(vi) any offer letter, employment agreement, independent contractor agreement Contract involving the payment or other Contract with any current Company Service Provider pursuant to which receipt of amounts by the Company is or reasonably could be obligated its Subsidiaries of more than US$3,000,000, or relating to pay compensation (excluding variable compensation) in excess indebtedness for borrowed money or any financial guaranty of $100,000 annuallymore than US$1,000,000;
(vii) any non-competition Contract or other Contract that is a settlementpurports to limit, conciliation, curtail or similar agreement with restrict in any Governmental Body or that imposes any monetary or other material obligations upon respect the ability of the Company or any of its Subsidiaries to compete in any Governmental Body after geographic area, industry or line of business or grants material exclusive rights to the date of this Agreementcounterparty thereto;
(viii) all joint venture, partnership any Contract that contains restrictions with respect to (involving sharing A) payment of profits) dividends or similar Contracts (and not including any sharing distribution with respect to equity interests of profits by a Third Party with the Company that are based on sales or any of goods its Subsidiaries, (B) pledging of share capital of the Company or services other than any of its Subsidiaries or (C) issuance of guaranty by the Company Products)or any of its Subsidiaries;
(ix) any Contract under which (A) provides the Company with effective control over any Governmental Body has of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an “Operating Subsidiary”), (B) provides the Company or any material rightsof 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 Subsidiary of the Company;
(Ax) any Contract containing covenants restricting between the Company or purporting to restrict competition whichany of its Subsidiaries, in either caseon the one hand, haveand any director or executive officer of the Company or any Person beneficially owning five percent or more of the Shares (or their respective Affiliates), would have or purport to have on the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, (other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another PersonParent Related Party);
(xi) each Contract providing for any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor earn-out payment payable by the Company or similar Person who is entitled any of its Subsidiaries to receive commissions, fees or markups related to any third party after the provision or resale of goods or services of the Companydate hereof;
(xii) any Contract involving commitments to make capital expenditures providing for any change of control or to Contract, purchase or sell assets involving similar payments in excess of $100,000 or more;1,000,000; or
(xiii) any leaseother Contracts, sublease, rental whether or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or made in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) ordinary course of business, the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) absence of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, . Each such Contract described in clauses (i) to (xiii) above is referred to herein as a “Material Contract”.
(b) Each Material Contract constitutes the valid and legally binding obligation of the Company is not in violation or any of 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, any Material Contract, its applicable Subsidiaries party thereto and, to the Knowledge of Company’s knowledge, the Companyother parties thereto, no other party enforceable in accordance with its terms, subject to such Material Contract the Bankruptcy and Equity Exception, and is in violation of any provisionfull force and effect. Except as would not reasonably be expected to have, individually or taken or failed to take any act whichin the aggregate, with or without noticea Company Material Adverse Effect, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, (i) neither the Company has not received nor any written notice orof its applicable Subsidiaries nor, to the Knowledge of the Company’s knowledge, any other communication regarding any actual party thereto, is in breach or possible violation or breach of, or default under, any Material Contract by and (ii) no event has occurred or not occurred through the Company. The ’s or any of its applicable Subsidiaries’ action or inaction or, to the Company’s knowledge, the action or inaction of any third party, that, with or without due notice or lapse of time or both, would constitute a breach or violation of, or default under, any Material Contract.
(c) As of the date of this Agreement, the Company has made available to Parent true and complete copies its Subsidiaries have not received any written claim or notice of each default, termination or cancellation under any such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Material Contracts. (a) Part 2.9(aSection 4.20(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsLetter sets forth, as of the date of this Agreement Agreement, a complete and accurate list of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of its their respective properties or assets are otherwise is bound that:
(A) contains provisions that prohibit (or would reasonably be expected to prohibit) the Company or any of its Affiliates (or, after the Closing, Parent or any of its Affiliates) from competing in or conducting any material line of business or prevent the Company or any of its Affiliates (or, after the Closing, Parent or any of its Affiliates) from entering any material territory, market or field (it being understood that a right of exclusivity or “most favored nation” right in a Contract of the following categories type described in clause (such Contracts required B)(1) through (6) below shall not be deemed to be disclosed under Part 2.9(aa provision of the type described in this clause (A)), or (B) is material to the Company and its Subsidiaries, taken as a whole, and contains provisions that grant a right of exclusivity or “most favored nation” right to any Person in connection with the sale, purchase or supply of the Company’s products or services, other than in the case of this clause (B), (1) Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than 90 days’ notice without payment by the Company or any of its Subsidiaries, (2) distribution, sales agency or customer Contracts entered into in the ordinary course of business granting exclusive rights to sell or distribute a Company Product (and not other products) or granting a “most favored nation” right in respect of a Company Products or services (and not other products or services), (3) license agreements for Company Licensed Intellectual Property Rights limiting the Company’s and its Subsidiaries’ use of such Company Licensed Intellectual Property Rights to specified fields of use, (4) supplier Contracts entered into in the ordinary course of business with requirements to purchase exclusively from a party, (5) marketing agreements entered into in the ordinary course of business and (6) research and development agreements entered into in the ordinary course of business;
(ii) is or relates to the formation, creation, governance, economics or control of a joint venture, partnership or similar agreement involving any Person other than a wholly owned Subsidiary of the Company;
(iii) other than intercompany agreements solely among the Company and/or any of its wholly owned Subsidiaries, contains any provision that limits or restricts (or purports to limit or restrict) the ability of the Company Disclosure Scheduleor any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the “Material Contracts”):case may be;
(iiv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $50 million individually;
(v) is a Contract (or group of related Contracts), A) with respect to Intellectual Property Rights (other than a generally commercially available, “off-the-shelf” software programs or non-exclusive licenses granted by the Company Plan, that requires future or any Subsidiary of the Company in the ordinary course of business which do not contain any material restriction or condition on the use or exploitation of any Intellectual Property Rights by the Company or any Subsidiary of the Company) which would reasonably be expected to involve payments by or to the Company in excess or any of the Subsidiaries of more than $100,000 25 million in any calendar year, including any such Contract twelve month period or (B) under which a license of Intellectual Property Rights is granted by or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent Company or any of its Subsidiaries, which license in the Contract case of this clause (B) is not terminable without penalty on 90 days’ or shorter noticematerial to any material Company Product;
(iivi) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale or purchase agreement or other similar agreement pursuant to which (A) any Contract relating to the acquisition purchase price (including any earn-out or disposition by the Company of any operating business deferred or assets (other than contingent payment) obligations remain outstanding, or indemnification claims have been made or threatened in writing, pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights and its Subsidiaries would reasonably be expected to be required to pay a total amount (including put or call options); or (Cassumption of debt) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of after the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course excess of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; $20 million or (B) any Contract that provides for “earn-outs” other Person has the right to acquire any assets of the Company and its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $20 million (in each case, excluding acquisitions or dispositions of supplies, inventory, merchandise or products in the ordinary course of business or of supplies, inventory, merchandise, products, properties or other contingent payments by assets that are obsolete, worn out, surplus or to no longer used or useful in the conduct of business of the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Businessor its Subsidiaries);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, settlement or similar agreement with any Governmental Body Authority or that imposes any monetary order or other material obligations upon consent of a Governmental Authority to which the Company or any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries, taken as a whole;
(viii) any Governmental Body Contract (or series of related Contracts) that obligates the Company or any of its Subsidiaries to make any capital commitment, loan or capital expenditure in an amount in excess of $50 million in the aggregate after the date of this Agreement;
(viiiix) all joint ventureis a Contract for the purchase of materials, partnership supplies, goods, services, equipment or other assets with any Person that required during the fiscal year ended January 2, 2016, or requires (involving sharing of profitsor under which there are reasonably expected to be) or similar Contracts (and not including any sharing of profits during the current fiscal year, aggregate payments by a Third Party with the Company that are based on sales or any Subsidiary of goods or services other the Company of more than Company Products)$50 million;
(ixx) is a Contract with a customer of the Company or any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect Subsidiary of prohibiting the Company, orincluding distributors, after which required during the Closingfiscal year ended January 2, Parent 2016, or requires (or under which there are reasonably expected to be) during the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which current fiscal year aggregate payments to the Company has granted “exclusivity” or that requires any Subsidiary of the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contractmore than $50 million; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;or
(xi) any Contract involving that is or would be required to be filed by the Company as a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled “material contract” pursuant to receive commissions, fees or markups related to Item 601(b)(10) of Regulation S-K under the provision or resale of goods or services of the Company;Securities Act.
(xii) any Each Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Scheduletype described in clauses (i) that contains through (xi) is referred to herein as a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a “Company Material Adverse EffectContract”.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have as would not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is valid and binding and in full force and effect and, to the knowledge of the Company, enforceable against the other party or parties thereto in accordance with its terms. The Company and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of the Company, each other party thereto, has performed its obligations required to be performed by it, as and when required, under each Company Material Contract, except for failures to perform that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company is not in violation nor any of its Subsidiaries, nor to the knowledge of the Company, any other party to a Company Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, breach 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 Company Material Contract, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Company Material Contract. Since January 1, 2021, True and complete copies of the Company has not received Material Contracts and any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has amendments thereto have been made available to Parent true and complete copies prior to the date of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (Abbott Laboratories)
Material Contracts. (a) Part 2.9(a) of Other than the Transaction Documents, and as Disclosed in the Company SEC Filings and those Contracts copies of which are attached to the Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that Letter, no Group Member is in effecta party to, and that has not expired or been terminated in accordance with its terms, bound by as of the date of this Agreement to which the Company such representation is a party or by which being made, any of its properties or assets are otherwise bound of the Material Contract (as defined below). The following categories (such Contracts required shall be deemed to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”)::
(i) any Contract (or group entered into otherwise than in the ordinary course of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticebusiness;
(ii) any Contract relating to the acquisition agreement or disposition arrangement otherwise than by the Company way of any operating business negotiation at arm’s length having a total contract value greater than US$1,000,000 (or assets (its equivalent in other than pursuant to non-exclusive licenses or grants of non-exclusive rightscurrencies); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety sale or performance bond purchase option or letter of credit issued similar Contract or posted, as applicable, arrangement affecting any material Assets owned or used by the Company; (B) any Contract evidencing Group Member or relating to Debt of the Company or providing for the creation of or granting by which any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which Group Member is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractbound;
(iv) any Contract creating which cannot readily be fulfilled or purporting to create performed by any partnership, alliance Group Member on time with or joint venture without undue or any sharing unusual expenditure of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)US$500,000;
(v) any collective bargaining agreement Contract substantially restricting the freedom of any Group Member to provide and take goods and services or similar Contract with any trade union, works council or other labor organizationto manage its own business affairs by such means and from and to such Persons as it may from time to time think fit;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which (a) any Group Member incurs Indebtedness with the Company is aggregate amount of principal and interest payments greater than US$1,000,000 or reasonably could be obligated to pay compensation (excluding variable compensationb) in excess of $100,000 annuallyany Group Member provides any guarantee;
(vii) any Contract that is a settlement, conciliationwhereby any Group Member is, or similar agreement with has agreed to become, a member of any Governmental Body joint venture, consortium or that imposes any monetary partnership or other material obligations upon the Company to any Governmental Body after the date of this Agreementunincorporated association;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with Contract that is illegal under the Company that are based on sales of goods or services other than Company Products)current regulations;
(ix) any Contract under which that prohibits or materially restricts the sale, disposal or transfer of any Governmental Body has Equity Securities (or any material rightsinterests therein) owned by the Company;
(Ax) any Contract containing covenants restricting shareholder agreements, joint venture agreements or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personpartnership agreements;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor employment contracts or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;arrangements with Senior Managers; or
(xii) any Contract involving commitments Sponsorship Agreement in relation to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectCord Blood Bank.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Waiver and Consent, Waiver and Consent (KKR & Co. L.P.)
Material Contracts. (a) Part 2.9(aSection 3.16(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that following written contracts and agreements to which any ▇▇▇▇▇▇ Entity is a party in effect, and that has not expired or been terminated in accordance with its terms, effect as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts contracts and agreements so required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduledisclosed, the being “Material Contracts”):
(i) any Contract (agreement for the purchase of products or group for the receipt of related Contracts)services, other the performance of which will extend over a period of more than a Company Plan, that requires future one year and which involved consideration or payments by or to the Company ▇▇▇▇▇▇ Entities in excess of $100,000 1,000,000 in any calendar yearthe aggregate during the year ended December 31, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice2008;
(ii) any Contract relating to agreement for the acquisition furnishing of products or disposition services by the Company ▇▇▇▇▇▇ Entities to their customers, the performance of any operating business which will extend over a period of more than one year and which involved consideration or assets (other than pursuant to non-exclusive licenses or grants payments by such customers in excess of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into $2,500,000 in the Ordinary Course of Businessaggregate during the year ended December 31, 2008;
(iii) any guarantyagreement concerning the establishment or operation of a partnership, surety joint venture or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractlimited liability company;
(iv) any Contract creating agreement under which any ▇▇▇▇▇▇ Entity created, incurred, assumed or purporting to create guaranteed any partnershipIndebtedness in excess of $5,000,000 or under which there has been imposed any Encumbrances on any of the assets, alliance tangible or joint venture or intangible, of any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)▇▇▇▇▇▇ Entity;
(v) any collective bargaining agreement entered into in the past four years (or similar Contract with respect to which any trade unionmaterial obligation of any ▇▇▇▇▇▇ Entity is outstanding) for the disposition of any material assets or business of any ▇▇▇▇▇▇ Entity (other than sales of products in the ordinary course of business) or any agreement entered into in the past four years for the acquisition of the assets or business of any other Person (other than purchases of products in the ordinary course of business), works council or other labor organizationin each case involving consideration in excess of $5,000,000;
(vi) any offer letter, employment agreement, independent contractor agreement that limits or other Contract purports to limit the ability of any ▇▇▇▇▇▇ Entity to compete in any line of business or with any current Company Service Provider pursuant to which the Company is Person or reasonably could be obligated to pay compensation (excluding variable compensation) in excess any geographic area or during any period of $100,000 annuallytime;
(vii) any Contract that is a settlementthe lease and, conciliationif applicable, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company sublease agreements pertaining to any Governmental Body after the date each parcel of this AgreementLeased Real Property;
(viii) all joint venture, partnership (agreements related to mining operations at the Mines involving sharing annual consideration in excess of profits) $1,000,000 or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales otherwise material to the conduct of goods or services other than Company Products)the business of the ▇▇▇▇▇▇ Entities taken as a whole;
(ix) all material contracts and agreements between or among any Contract under which ▇▇▇▇▇▇ Entity, on the one hand, and the Seller or any Governmental Body has any material rightsAffiliate of the Seller, on the other hand;
(Ax) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area all collective bargaining agreements or other jurisdictioncontracts with any labor organization, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” union or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personassociation;
(xi) any Contract involving employment related (including consulting) contract or arrangement that is a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor Transferred Plan or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale that provides for total annual compensation in excess of goods or services of the Company$250,000;
(xii) any Contract involving commitments to make capital expenditures contract that contains exclusivity or to Contract, purchase “most favored nation” obligations or sell assets involving $100,000 similar restrictions binding on any ▇▇▇▇▇▇ Entity or morethat would be binding on Purchaser or its Affiliates after the Closing;
(xiii) any leasematerial ▇▇▇▇▇▇ IP Agreement, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which other than non-disclosure agreements entered into in the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertyordinary course of business;
(xiv) any contract to which any ▇▇▇▇▇▇ Entity is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the Company Intellectual Property Agreements; andother party or any of its Affiliates;
(xv) any Contract (excluding contract relating to any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause interest rate, currency or commodity derivative, hedge, derivative transactions or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; andtransactions;
(xvi) any Contract not otherwise listed contract containing a put, call or similar right pursuant to which any ▇▇▇▇▇▇ Entity could be required to be listed in Part 2.9(apurchase or sell, as applicable, any securities or assets; and
(xvii) any contract other than described above to which any ▇▇▇▇▇▇ Entity is a party or by which it or they or any of its or their assets or properties or business is bound or subject that: (A) is material to the Company Disclosure Schedule (including Company Intellectual Property Agreements) that▇▇▇▇▇▇ Entities, if terminatedtaken as a whole, or the use or operation of any of its assets or properties, taken as a whole, or (B) if such Contract expired without being renewedbreached, would terminated or not renewed could have a Company Material Adverse Effect.
(b) With respect to each Each Material Contract listed in Part 2.9(a(i) of is valid and binding on the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contractapplicable ▇▇▇▇▇▇ Entity, and, to the Knowledge of the CompanySeller, no the counterparties thereto, and is in full force and effect and (where applicable) Registered or filed with any relevant Governmental Authority, (other party to than, in respect of the making of this representation and warranty as of the Closing Date in accordance with the first paragraph of this Article III, where such Material Contract expires in accordance with its terms without a right of renewal or is terminated in accordance with its terms by a counterparty other than due to a ▇▇▇▇▇▇ Entity’s breach) and (ii) upon consummation of the transactions contemplated by this Agreement, except to the extent that any consents set forth in Section 3.04(c) of the Disclosure Schedule are not obtained, shall continue in full force and effect without penalty or other adverse consequence. None of the ▇▇▇▇▇▇ Entities is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or material breach of, or material default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract which it is a Material Contract)party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dow Chemical Co /De/), Stock Purchase Agreement (Rohm & Haas Co)
Material Contracts. (a) Part 2.9(aSchedule 4.16(a) sets forth all of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following Contracts to which the Company is a party or by which any of its them or their respective assets or properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”):) but excluding for all cases the Development Agreement:
(i) any Contract (or group of related ContractsContracts required to be disclosed on Schedule 4.22(a), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to Contracts for the acquisition or disposition by the Company sale of any operating business or of the assets (of Company other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Company’s Business;
(iii) any guarantyContracts for joint ventures, surety strategic alliances, partnerships, licensing arrangements or performance bond sharing of profits or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractproprietary information;
(iv) Contracts containing covenants of Company not to compete in any Contract creating line of business or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; Person in any geographical area or (B) not to solicit or hire any Contract that provides for “earn-outs” individual with respect to employment or covenants of any other contingent payments by Person not to compete with Company in any line of business or in any geographical area or not to the Company that have not yet been paid solicit or hire any Person with respect to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)employment;
(v) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) of any collective bargaining agreement operating business or similar Contract with any trade union, works council material assets or the capital stock or other labor organizationequity interests of any other Person;
(vi) any offer letterContracts relating to Indebtedness;
(vii) Contracts entered into outside of the Ordinary Course of Company’s Business providing for the license of Company Products or the provision of services by Company;
(viii) Contracts providing for severance, employment agreementretention, independent contractor agreement change in control or other Contract similar payments, or for the employment of any individual on a full-time, part time or consulting or other basis;
(ix) Contracts providing for indemnification or reimbursement by Company arising out of or in connection with any current Company Service Provider pursuant Product or service provided by Company;
(x) Contracts (or group of related contracts) to which the Company is a party that involve the expenditure or reasonably could be obligated to pay compensation (excluding variable compensation) in excess receipt of more than $100,000 annually;
(vii) annually or which require performance by any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after party more than one year from the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personhereof;
(xi) any Contract involving a sales agentContracts for the lease of Leased Property, representativeincluding, distributorwithout limitation, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the CompanyReal Property Leases;
(xii) any Contract involving commitments Contracts and agreements related to make capital expenditures obtaining materials and services used in the manufacture of Eikon Kits and other kits and receptacle or to Contract, purchase or sell assets involving $100,000 or morecollection systems and other material supplier Contracts;
(xiii) Contracts with any lease, sublease, rental Person that require Company to deal exclusively with such Person or occupancy agreement, license that require Company to transact a minimum amount of business with such Person (not relating or provide for negative consequences if Company fails to Intellectual Property), installment, and conditional sale agreement do either of the foregoing) or agreement under which the Company is the lessee or lessor of, or owns, uses or operates that give any leasehold or other interest in any real or personal propertyPerson “most favored nations” treatment;
(xiv) the powers of attorney given by Company Intellectual Property Agreements; andor on behalf of Company;
(xv) Contracts involving material licenses of any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregateIntellectual Property; and
(xvi) any Contract not Contracts that are otherwise listed or required material to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectCompany.
(b) With respect to each Material Contract listed in Part 2.9(a) Each of the Company Disclosure ScheduleMaterial Contracts is in full force and effect and is the legal, such Material Contract is, to the Knowledge valid and binding obligation of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, them in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesBankruptcy/Equity Exception. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material default under the provisions of, any Material Contract, andnor, to the Knowledge of the Company, no is any other party to such any Material Contract is in violation of any provisionmaterial default thereunder, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, and to the Knowledge of the Company no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and, to Company’s Knowledge, other communication regarding no party has given notice of any actual or possible violation or breach of, or default under, significant dispute with respect to any Material Contract by the CompanyContract. The Company has made available delivered to the Parent true true, correct and complete copies of each such all of the Material Contract in Contracts, together with all material respects (including all modificationsamendments, amendments and modifications or supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)thereto.
Appears in 2 contracts
Sources: Merger Agreement (Co-Diagnostics, Inc.), Merger Agreement (Co-Diagnostics, Inc.)
Material Contracts. (a) Part 2.9(a) Except as disclosed in Section 5.16 of the Company BOE Disclosure Schedule lists each Contract (other than any Company Plan set forth Memorandum or otherwise reflected in Part 2.15(a) the BOE Financial Statements, none of the Company Disclosure Schedule) that is in effectBOE Entities, and that has not expired nor any of their respective Assets, businesses, or been terminated in accordance with its termsoperations, as of the date of this Agreement to which the Company is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleaffected by, the “Material Contracts”):
or receives benefits under, (i) any employment, severance, termination, consulting, or retirement Contract (or group of related Contracts), other than a Company Plan, that requires future providing for aggregate payments by or to the Company any Person in any calendar year in excess of $100,000 in any calendar year125,000, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition borrowing of money by any BOE Entity or disposition the guarantee by the Company any BOE Entity of any operating business or assets such obligation (other than pursuant Contracts evidencing the creation of deposit liabilities, purchases of federal funds, advances from the Federal Reserve Bank or Federal Home Loan Bank, entry into repurchase agreements fully secured by U.S. government securities or U.S. government agency securities, advances of depository institution Subsidiaries incurred in the ordinary course of BOE’s business and trade payables and Contracts relating to nonborrowings or guarantees made in the ordinary course of BOE’s business), (iii) any Contract which prohibits or restricts any BOE Entity or any personnel of a BOE Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with customers or “shrink-exclusive licenses or grants of non-exclusive rightswrap” software licenses); , (Bv) any Contract relating to the acquisition provision of data processing, network communication, or disposition other technical services to or by any BOE Entity, (vi) any Contract relating to the Company purchase or sale of any operating business goods or assets services (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course ordinary course of Business;
business and involving payments under any individual Contract or series of contracts not in excess of $125,000), (iiivii) any guarantyexchange-traded or over-the-counter swap, surety forward, future, option, cap, floor, or performance bond collar financial Contract, or letter of credit issued any other interest rate or postedforeign currency protection Contract or any Contract that is a combination thereof not included on its balance sheet, as applicable, by the Company; and (Bviii) any other Contract evidencing or relating that would be required to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating be filed as an exhibit to any loan or advance to any Person which is outstanding a Form 10-K filed by BOE as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or pursuant to the Company that have not yet been paid reporting requirements of the Exchange Act, if such reporting requirements applied to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms BOE as of such Contract, is required date (together with all Contracts referred to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Propertyin Sections 5.11 and 5.15(a), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect“BOE Contracts”).
(b) With respect to each Material BOE Contract listed and except as disclosed in Part 2.9(aSection 5.16(b) of the Company BOE Disclosure Schedule, Memorandum: (i) the Contract is in full force and effect; (ii) no BOE Entity is in Default thereunder; (iii) no BOE Entity has repudiated or waived any material provision of any such Material Contract; (iv) no other party to any such Contract is, to BOE’s Knowledge, in Default in any respect or has repudiated or waived each material provision thereunder; and (v) no consent is required by a Contract for the Knowledge execution, delivery, or performance of this Agreement, the consummation of the Company, binding and enforceable against Merger or the Company and, to the Knowledge other transactions contemplated hereby. All of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation indebtedness of any provision ofBOE Entity for money borrowed is prepayable at any time by such BOE Entity without penalty, premium or taken or failed to take any act whichcharge, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge except as specified in Section 5.16(b) of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)BOE Disclosure Memorandum.
Appears in 2 contracts
Sources: Merger Agreement (Boe Financial Services of Virginia Inc), Merger Agreement (Community Bankers Acquisition Corp.)
Material Contracts. (a) Part 2.9(aSchedule 3.16(a) sets forth a true, correct and complete list of all Contracts described in clauses (i) through (xv) below to which any member of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company Group is a party or by which any of its properties or assets are otherwise bound member of the following categories Company Group, or any of the Company Group Assets, are bound (such Contracts each Contract required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contractsset forth on Schedule 3.16(a), other than a Company Benefit Plan, that requires future payments by or a “Company Material Contract”) and the Company has delivered to the SPAC, true, complete and correct copies of each:
(i) contains covenants that materially limit the ability of any member of the Company in excess of $100,000 Group (A) (1) to compete in any calendar yearline of business, including with any such Contract Person or in any geographic area, (2) to sell or group of such Contracts that are related) for the purchase, lease provide any service or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal propertyproduct, or for (3) to solicit any Person, other than in respect of customary non-disclosure agreements entered into by any member of the provision Company Group in the ordinary course of business or receipt of services, (B) to purchase or acquire an Interest in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeany other Person;
(ii) with any Contract relating Governmental Authority to which a Company is a party;
(iii) providing for the acquisition or disposition by the Company formation of any operating business joint venture or assets profit-sharing agreement or arrangement;
(other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (Biv) any Contract relating to providing for the acquisition or disposition indemnification by the a Company Group member of any operating business Person or assets (other than pursuant to non-exclusive licenses or grants the assumption of non-exclusive rights) under which the Company has any executory covenants or indemnification Tax, environmental or other obligations or rights (including put or call options); or (C) Liability of any Contract under which the Company have any indemnification obligationsPerson, other than any such Contract for the purchase or sale of goods and services executed in the ordinary course of business;
(v) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) by and between members of the Company Group having an outstanding principal amount in excess of $500,000;
(vi) was entered into during the past two (2) years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets, including real property, with an aggregate value in excess of $500,000 (other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, (B) in the ordinary course of business consistent with past practice or (C) between the members of the Company Group);
(vii) pursuant to which payments or receipts by any member of the Company Group under such Contract or Contracts exceeded $500,000 in the fiscal year ending December 31, 2022, in the aggregate;
(viii) is with any Top Supplier, or Top Customer excluding any non-disclosure agreements, purchaser order forms, sales acknowledgement forms or similar agreements entered into in the Ordinary Course ordinary course of Businessbusiness;
(iiiix) pursuant to which a Company Group member is required to purchase its total requirements of any guaranty, surety product or performance bond service from a third party or letter of credit issued that contain “take or posted, as applicable, by the Company; pay” provisions;
(Bx) is between any Contract evidencing or relating to Debt member of the Company Group and any directors, officers or providing employees of a Company Group member (including, for the creation avoidance of doubt, the Key Management) or granting any Lien upon Related Person and which are not cancellable without material penalty or without more than ninety (90) days’ notice;
(xi) is a collective bargaining agreement or Contract with any of the property or assets of Union to which the Company is a party;
(excluding Permitted Liens); xii) obligates the Company Group to make any capital commitment or expenditure in excess of $500,000 (C) any Contract (1) relating including pursuant to any loan or advance joint venture);
(xiii) relates to any Person which is outstanding as of a settlement entered into within three (3) years prior to the date of this Agreement or under which any member of the Company Group has outstanding obligations (other than immaterial advances customary confidentiality obligations) that would be reasonably likely to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent involve payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body 500,000 after the date of this Agreement;
(viiixiv) all joint venturerelates to the development, partnership (involving sharing ownership, licensing or use of profits) any Intellectual Property by, to or similar Contracts (and not including from any sharing member of profits by a Third Party with the Company that are based on sales of goods or services Group (the “Company IP Licenses”), other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to restrict competition whichthe public generally with license, in either casemaintenance, havesupport and other fees of less than $50,000 per year, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the employee or consultant invention assignment agreements entered into on a Company has granted “exclusivity” or that requires the Company to deal exclusively withGroup’s standard form of such agreement, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirementsconfidentiality agreements entered into in the ordinary course of business, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) non-exclusive licenses from or to suppliers, customers or distributors to any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person ismember of the Company Group entered into in the ordinary course of business, or could become, entitled (E) feedback and ordinary course trade name or logo rights that are not material to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services member of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property AgreementsGroup; andor
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) the termination of which, would be otherwise material to the Company Disclosure ScheduleGroup and not covered by clauses (i) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
through (xvixiv) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectabove.
(b) With respect to each Material Contract listed in Part 2.9(a) No member of the Company Disclosure Schedule, such Material Contract is, to the Knowledge Group is in breach of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, terms of any Company Material Contract, Contract and, to the Knowledge of the Company, no other party to such any Company Material Contract is in violation breach of any provision, 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 terms of any Company Material Contract. Since January 1, 2021, and no event has occurred or not occurred through any of the Company has not received any written notice Group’s action or inaction or, to the Knowledge of the Company, other communication regarding through the action or inaction of any actual third party, that with notice or possible violation the lapse of time or both would constitute a breach of, of or default underunder the terms of any Company Material Contract, any in each case, except as would not reasonably expected to have, individually or in the aggregate, a material and adverse effect on the Company Group, taken as a whole. Each Company Material Contract by (i) is a valid and binding obligation of the member of the Company Group that is party thereto and, to the Knowledge of the Company. The Company has made available to Parent true and complete copies , of each such other party thereto, and (ii) is in full force and effect, subject to the Remedies Exception, in each case, except as would not be reasonably expected to have, individually or in the aggregate, a material and adverse effect on the Company Group, taken as a whole. There are no, and within the last three (3) years there have not been, disputes pending or, to the Knowledge of the Company, threatened in writing with respect to any Company Material Contract, and the Company Group has not received any written notice of the intention of any other party to a Company Material Contract in all material respects (including all modificationsto terminate for default, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a convenience or otherwise any Company Material Contract), except as would not be reasonably expected to have, individually or in the aggregate, a material and adverse effect on the Company Group, taken as a whole.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (TMT Acquisition Corp.), Merger Agreement (TMT Acquisition Corp.)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsExcept for this Agreement, as of the date hereof, none of this Agreement to which the Company or its Subsidiaries is a party to or bound by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):Contract:
(i) any Contract that is a “material contract” (or group as such term is defined in Item 601(b)(10) of related ContractsRegulation S-K of the SEC), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating that materially limits, curtails or restricts or purports to materially limit, curtail or restrict either (x) the acquisition or disposition by the Company type of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under in which the Company has or any executory covenants of its Subsidiaries may engage or indemnification or other obligations or rights (including put or call options); the locations in which any of them may so engage in any business or (Cy) any Contract under which the ability of the Company have or any indemnification obligationsof its Subsidiaries to hire or solicit for hire for employment any individual or group as would be material to the Company and its Subsidiaries, other than any such taken as a whole, in each case pursuant to this clause (ii) except for Government Contracts and teaming agreements entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(iii) for any guarantyjoint venture, surety partnership or performance bond similar arrangement, or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing involving a sharing of revenues, profits, losses, costs, or relating to Debt of liabilities by the Company or providing for the creation of or granting any Lien upon any of the property or assets of its Subsidiaries with any other Person, in each case pursuant to which the Company (and its Subsidiaries would reasonably be expected to be obligated to contribute assets with a fair market value in excess of $2,000,000 in any twelve month period, in each case excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants teaming agreement entered into in the Ordinary Course ordinary course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractbusiness consistent with past practice;
(iv) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing indebtedness of any Contract creating Person in excess of $2,000,000 or purporting to create any partnershipthat becomes due and payable upon, alliance or joint venture provides a right of termination or any sharing acceleration as a result of, the consummation of profits the Merger and the other Transactions, other than Contracts between or losses by among the Company with and any Third Party; of its wholly owned Subsidiaries or (B) between or among any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)such wholly owned Subsidiaries;
(v) any that is a collective bargaining agreement or similar Contract with any trade union, works council or other labor organizationagreement;
(vi) that is (x)
(1) a long-term supply Contract that is not specific to the fulfillment of a customer Contract, (2) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which in respect of the needs of an individual division of the Company that is not specific to the fulfillment of customer Contracts, or (3) a Contract in respect of the needs of the Company’s headquarters operations that is not specific to the fulfillment of a customer Contract that, in each case, involves or would reasonably could be obligated expected to pay compensation (excluding variable compensation) involve aggregate payments by the Company and/or its Subsidiaries in excess of $100,000 annually;
5,000,000 in any twelve-month period, or (viiy) any a Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other otherwise material obligations upon to the business of the Company to or any Governmental Body after of its Subsidiaries, in the date case of this Agreement;
each of (viiix) all joint ventureand (y), partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting that may be cancelled without penalty or purporting to restrict competition whichtermination payments by the Company and/or its Subsidiaries upon notice of sixty (60) days or less, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Government Contract in or other customer Contract, (C) Contracts that support one or more Government Contract or other individual Contract with customers for which the Company has granted is substantially fully reimbursed for such Contract pursuant to such Government Contract or Contract with such customer (such Contracts, “exclusivity” or that requires the Company to deal exclusively withDirect Charge Contracts”), or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property)license, installmentor other Contract that, and conditional sale agreement or agreement under which in each case, provides for the Company is the lessee or lessor ownership of, leasing of, title to, use of, or owns, uses or operates any leasehold or other interest in any real property, (E) Contracts relating to Benefit Plans, (F) Contracts relating to insurance policies or personal property(G) Contracts with distributors or sales agents that are commission-based;
(xivvii) that, to the knowledge of the Company, includes an indemnification obligation of the Company or any of its Subsidiaries (including any obligations to advance funds for expenses), other than Contracts containing indemnification obligations which would not reasonably be expected to obligate the Company to pay in excess of $5,000,000;
(viii) is an acquisition agreement, asset purchase agreement, sale agreement, purchase agreement, stock purchase agreement, put agreement, call agreement or other similar agreement pursuant to which (A) the Company Intellectual Property Agreements; and
(xv) or any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that its Subsidiaries would be reasonably be expected to be triggered obligated to pay total consideration including assumption of debt after the date of this Agreement in connection with excess of $10,000,000, (B) any third party has the consummation right to acquire any assets of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of its Subsidiaries with a fair market value or purchase price of more than $100,00010,000,000, individually or (C) any third party has the right to acquire any interests in the aggregate; andCompany or any of its Subsidiaries, other than, in the case of clauses (A) and (B), acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice;
(xviix) any Contract not otherwise listed between the Company and its Subsidiaries, on the one hand, and the Company’s Affiliates (other than Subsidiaries of the Company) or other Persons, on the other hand, that would be required to be listed in Part 2.9(a) disclosed under Item 404 of Regulation S-K of the Company Disclosure Schedule SEC;
(including Company Intellectual Property Agreementsx) that, if terminatedthat would, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to haveto, individually or in the aggregate, a Company Material Adverse Effectprevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(xi) that is material to the Company and its Subsidiaries, taken as a whole, and was not negotiated and entered into on an arm’s-length basis, other than agreements between the Company and its wholly-owned Subsidiaries or between wholly-owned Subsidiaries of the Company;
(xii) that contains any standstill provision to which the Company or any of its Subsidiaries is subject or a beneficiary thereof;
(xiii) that contains any most favored nation provision or similar preferential pricing terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject, which is material to the Company and its Subsidiaries, taken as a whole, other than Government Contracts, teaming agreements and the Company’s GSA Schedules; or
(xiv) that limits or restricts the ability of the Company or any of its Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as applicable, (B) to make loans to the Company or any of its Subsidiaries or (C) to grant Liens on the property of the Company or any of its Subsidiaries. Each such contract described in Section 5.13(a) above, together with all Contracts filed as exhibits to the Company Reports is referred to herein as a “Material Contract.”
(b) Section 5.13(a) of the Company Disclosure Letter sets forth a reasonably detailed description of each reason why each Contract listed therein is disclosed in response to the applicable subsection of Section 5.13(a) of the Company Disclosure Letter. Each of the Material Contracts is binding on the Company or its Subsidiaries, as the case may be, subject to the Bankruptcy and Equity Exception, and, to the knowledge of the Company, each other party thereto, in accordance with its terms and is in full force and effect, and each of the Company and each of its Subsidiaries (to the extent they are party thereto or bound thereby) and, to the Company’s knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under each Material Contract. Each of the Company and each of its Subsidiaries is not in violation of any provision of, or taken or failed to take any act which, (with or without notice, lapse of time, time or both, would constitute a ) in breach or default under the provisions of, in any Material Contract, material respect thereunder and, to the Knowledge knowledge of the Company, no other party to such any Material Contract is in violation of any provision, or taken or failed to take any act which, (with or without notice, lapse of time, time or both) in breach or default in any material respect thereunder, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, and neither the Company nor any of its Subsidiaries has not received any written notice or, from the other party to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by of any intention to cancel, terminate, materially change the Company. The Company has made available scope of rights and obligations under or not to Parent true and complete copies of each renew such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (Harris Corp /De/), Merger Agreement (Exelis Inc.)
Material Contracts. (a) Part 2.9(aExcept as disclosed in Section 3.16(a) of the Company Seller Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Memorandum, none of the Company Disclosure Schedule) that is in effectSeller Entities, and that has not expired nor any of their respective Assets, businesses, or been terminated in accordance with its termsoperations, as of the date of this Agreement to which the Company is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleaffected by, the “Material Contracts”):
or receives benefits under, (i) any Contract (or group of related Contracts)employment, other than a Company Planbonus, that requires future payments by or to the Company in excess of $100,000 in any calendar yearseverance, including any such Contract (or group of such Contracts that are related) for the purchasetermination, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal propertyconsulting, or for the provision or receipt of servicesretirement Contract, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition borrowing of money by any Seller Entity or disposition the guarantee by the Company any Seller Entity of any operating business or assets such obligation (other than pursuant Contracts evidencing the creation of deposit liabilities, purchases of federal funds, advances from the Federal Reserve or Federal Home Loan Bank, entry into repurchase agreements fully secured by U.S. government securities or U.S. government agency securities, advances of depository institution Subsidiaries incurred in the ordinary course of Seller’s business, and trade payables and Contracts relating to nonborrowings or guarantees made in the ordinary course of Seller’s business), (iii) any Contract which prohibits or restricts any Seller Entity or any personnel of a Seller Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with vendors or customers or “shrink-exclusive licenses or grants of non-exclusive rightswrap” software licenses); , (Bv) any Contract relating to the acquisition provision of data processing, network communication, or disposition other technical services to or by any Seller Entity, (vi) any Contract relating to the Company purchase or sale of any operating business goods or assets services (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course ordinary course of Business;
business and on an annual basis involving payments under any individual Contract or series of contracts not in excess of $50,000 on an annual basis), (iiivii) any guarantyexchange-traded or over-the-counter swap, surety forward, future, option, cap, floor, or performance bond collar financial Contract, or letter of credit issued any other interest rate or postedforeign currency protection Contract or any Contract that is a combination thereof not included on its balance sheet, as applicable, by the Company; and (Bviii) any other Contract evidencing or relating that would be required to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating be filed as an exhibit to any loan or advance to any Person which is outstanding a Form 10‑K filed by Seller as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or pursuant to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a reporting requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
Exchange Act (xii) any Contract involving commitments together with all Contracts referred to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Propertyin Sections 3.11 and 3.15(a), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect“Seller Contracts” ).
(b) With respect to each Material Seller Contract listed and except as disclosed in Part 2.9(aSection 3.16(b) of the Company Seller Disclosure Schedule, Memorandum: (i) the Contract is in full force and effect; (ii) no Seller Entity is in Default thereunder; (iii) no Seller Entity has repudiated or waived any material provision of any such Material Contract; (iv) no other party to any such Contract is, to Seller’s Knowledge, in Default in any respect or has repudiated or waived any material provision thereunder; and (v) no consent which has not been or will not be obtained is required by a Contract for the Knowledge execution, delivery, or performance of this Agreement, the consummation of the Company, binding and enforceable against Merger or the Company and, to the Knowledge other transactions contemplated hereby. Section 3.16(b) of the Company, against each party thereto other than Seller Disclosure Memorandum lists every consent required by any Contract. All of the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation indebtedness of any provision ofSeller Entity for money borrowed is prepayable at any time by such Seller Entity without penalty, premium or taken or failed to take any act whichcharge, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge except as specified in Section 3.16(b) of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Seller Disclosure Memorandum.
Appears in 2 contracts
Sources: Merger Agreement (State Bank Financial Corp), Merger Agreement (State Bank Financial Corp)
Material Contracts. (a) Part 2.9(a) Section 4.18 of the Company Disclosure Schedule lists each Contract sets forth a list of all Material Contracts (other than any as hereinafter defined). The Company Plan set forth in Part 2.15(a) has heretofore made available to the Parent true, correct and complete copies of the Company Disclosure Schedule) that is in effectall written or oral contracts and agreements (and all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement 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 its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or are material to the Company in excess of $100,000 in any calendar yearbusiness, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property properties or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding and its subsidiaries taken as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencya whole, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnershipincluding, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade unionwithout limitation, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to havefollowing are, individually or in the aggregate, material to the business, properties or assets of the Company and its subsidiaries taken as a whole, all: (i) employment, severance, product design or development, personal services, consulting, non-competition or indemnification contracts (including, without limitation, any contract to which the Company Material Adverse Effector any of its subsidiaries is a party involving employees of the Company) involving an amount in excess of $100,000; (ii) licensing, merchandising or distribution agreements; (iii) contracts granting a right of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material properties or assets, in excess of $250,000, of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1997; (vi) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries or any such agreement pursuant to which indebtedness for borrowed money may be incurred; (vii) agreements that purport to limit, curtail or restrict the ability of the Company or any of its subsidiaries to compete in any geographic area or line of business; and (viii) commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 6.1 hereof, the "Material Contracts"). Neither the Company nor any of its subsidiaries is not a party to or bound by any severance or other agreement with any employee or consultant pursuant to which such person would be entitled to receive any additional compensation or an accelerated payment of compensation as a result of the consummation of the Transactions.
(b) Each of the Material Contracts constitutes the valid and legally binding obligation of the Company or its subsidiaries, enforceable in violation accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles), and is in full force and effect. There is no default under any provision ofMaterial Contract so listed either by the Company or, or taken or failed to take the Company's Knowledge, by any act whichother party thereto, and no event has occurred that with or without notice, the lapse of time, time or both, the giving of notice or both would constitute a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, thereunder by the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under's Knowledge, any Material Contract by the Company. The Company has made available other party.
(c) No party to Parent true and complete copies of each any such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers has given notice to the Company of or made a claim against the Company with respect to any breach or default thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Stock Purchase Agreement (QMS Inc), Stock Purchase Agreement (Minolta Investments Co)
Material Contracts. (a) Part 2.9(aSection 5.21(a) of the Company Disclosure Schedule lists sets forth a true and complete list of each Contract (other than of the following types of Contracts to which the Company or any Company Plan set forth in Part 2.15(a) of the Company Disclosure ScheduleSubsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) that or to which any of their respective properties or assets is subject, in effect, and that has not expired or been terminated in accordance with its terms, each case as of the date of this Agreement to which the hereof, but excluding any purchase orders, invoices, requisition forms, or other form purchasing documents and any Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be Plans disclosed under Part 2.9(aon Section 5.15(a) of the Company Disclosure Schedule, the “Material Contracts”)::
(i) (A) contains any Contract exclusivity or similar provision that is binding on the Company or any of the Company Subsidiaries (or group would purport to be binding, after the Closing Date, on Parent or any of related Contracts)the Company Subsidiaries) or (B) otherwise limits or restricts the Company or any of the Company Subsidiaries (or would purport to limit or restrict, other than a after the Closing Date, Parent or any of the Company PlanSubsidiaries) from (1) engaging or competing in any line of business in any location or with any Person, that requires future payments by (2) selling any products or services of or to the Company in excess of $100,000 any other Person or in any calendar yeargeographic region, including any such Contract or (or group of such Contracts that are related3) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, obtaining products or other personal property, or for the provision or receipt of servicesservices from any Person, in each case of clause (A) and clauses (1), (2) and (3) of clause (B), that is material to the extent Company and the Contract is not terminable without penalty on 90 days’ or shorter noticeCompany Subsidiaries, taken as a whole;
(ii) includes (A) any Contract relating “most favored nation” terms and conditions (including with respect to the acquisition or disposition pricing) granted by the Company or any of any operating business the Company Subsidiaries to a Third Party, or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating arrangement whereby the Company or any of the Company Subsidiaries grants any right of first refusal or right of first offer or similar right to a Third Party, in each case of clauses (A) and (B) that is material to the acquisition or disposition by Company and the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsSubsidiaries, other than any such Contracts entered into in the Ordinary Course of Businesstaken as a whole;
(iii) any guarantyis a joint venture, surety strategic alliance or performance bond partnership agreement that either (A) is material to the Company and the Company Subsidiaries, taken as a whole, or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating would reasonably be expected to Debt of require the Company or providing for the creation of or granting any Lien upon any of the property or assets of and the Company (excluding Permitted Liens); (C) any Contract (1) relating Subsidiaries to any loan or advance to any Person which is outstanding as make expenditures in excess of $300,000 in the aggregate during the 12-month period following the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contracthereof;
(iv) is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and the Company Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $500,000 individually;
(v) is a Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and the Company Subsidiaries) with a fair value in excess of $100,000;
(vi) is a material Contract with respect to any Contract creating Company Intellectual Property Rights and not for “off-the-shelf” software or purporting to create any hardware generally commercially available on standard and non-discriminatory terms;
(vii) is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale or purchase agreement or other similar agreement, in each case for the purchase or sale of a corporation, partnership, alliance or joint venture other business organization or business thereof (including all or substantially all of the assets of such business), pursuant to which (A) any other Person has the right to acquire any assets of the Company or any sharing of profits or losses by the Company with any Third Party; Subsidiaries or (B) any Contract that provides for “earn-outs” or other contingent payments by or Person has the right to acquire any equity interests in the Company that have not yet been paid to or any of the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Subsidiaries;
(vviii) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, settlement or similar agreement with any Governmental Body Authority or that imposes arbitrator (public or private) (including any monetary corporate integrity agreement, monitoring agreement or other material obligations upon deferred prosecution agreement) or order or consent of a Governmental Authority or arbitrator (public or private) (including any consent decree or settlement order) to which the Company to or any Governmental Body of the Company Subsidiaries is subject involving performance on or after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits hereof by a Third Party with the Company that are based on sales or any of goods or services other than the Company Products)Subsidiaries and in an amount in excess of $100,000 individually;
(ix) any Contract under (or series of related Contracts) pursuant to which the Company or any Governmental Body Company Subsidiary has continuing “earn-out” or similar obligations that could result in payments from the Company or any material rightsCompany Subsidiary in an amount in excess of $100,000 per Contract;
(Ax) any Contract containing covenants restricting (or purporting series of related Contracts) that creates an obligation of the Company or any of the Company Subsidiaries to restrict competition whichmake any capital commitment, loan or capital expenditure in either case, have, would have or purport to have the effect an amount in excess of prohibiting the Company, or, $100,000 per twelve-month period after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Persondate hereof;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to with the provision or resale of goods or services of the CompanyCompany Customers and Suppliers;
(xii) any Contract involving commitments to make capital expenditures or to Contractthat contains a change in control provision that would be triggered in connection with consummation of the Transactions, purchase or sell assets involving provided that (i) such Contract has provided $100,000 or moremore of revenue to the Company or any of the Company Subsidiaries, individually or in the aggregate, in the twelve-month period prior to the date hereof, or would reasonably be expected to provide $100,000 or more of revenue to the Company or any of the Company Subsidiaries, individually or in the aggregate, in the twelve-month period after the date hereof or (ii) such change in control provision expressly requires aggregate payments by the Company or any the Company Subsidiaries, individually or in the aggregate, in excess of $100,000;
(xiii) any leaseContract (including any loan) between the Company or any of its Significant Subsidiaries, subleaseon the one hand, rental and any officer, director or occupancy agreement, license Affiliate (not relating to Intellectual Propertyother than a wholly-owned Subsidiary) of the Company or any of its Significant Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), installmenton the other hand, and conditional sale agreement or agreement under including any Contract pursuant to which the Company is the lessee or lessor ofany of its Significant Subsidiaries has an obligation to indemnify such officer, director, Affiliate or ownsfamily member, uses or operates but not including any leasehold or other interest in any real or personal propertyCompany Plans;
(xiv) the Company Intellectual Property Agreements; andany stockholder, investors rights, registration rights or similar agreement or arrangement;
(xv) any Contract (excluding pursuant to which the Company or any Contract disclosed in Part 2.14(f) of the Company Disclosure ScheduleSubsidiaries has continuing obligations or interests involving (A) that contains a change in control clause “milestone” or other similar provision that would be reasonably be expected contingent payments to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments made to or by the Company or any successor thereto of the Company Subsidiaries upon the achievement of certain milestones, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or any of the Company Subsidiaries, in excess of $100,000, individually or each case (x) which payments after the date hereof would reasonably be expected to be: (i) in the aggregate; andcase of suppliers and subcontractors, more than $200,000 in the twelve (12) month period following the date hereof, and (ii) in the case of employees and sales representatives, more than $100,000 in the twelve (12) month period following the date hereof, and (y) that cannot be terminated by the Company or such Company Subsidiary without more than sixty (60) days’ notice without material payment or penalty;
(xvi) any employment, severance, consulting or other agreements which provide for compensating or providing benefits to, or that otherwise govern the terms of employment of, present or former employees or consultants of the Company or the Company Subsidiaries, which provide for base compensation payable to any employee or consultant of the Company or any of the Company Subsidiaries in excess of $100,000 per year;
(xvii) any material collective bargaining agreement or other material Contract not otherwise listed with any labor union;
(xviii) any Contract (including any option agreement) to purchase or sell any interest in real property, and any Company Real Property Lease;
(xix) any Contract relating to the indemnification of any director or officer of the Company or any of the Company Subsidiaries that deviates from the form of indemnification agreement made available to the Investors; or
(xx) any Contract that would be required to be listed in Part 2.9(afiled by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company Disclosure Schedule under Item 1.01 on a Current Report on Form 8-K. Each Contract of the type described in clauses (including Company Intellectual Property Agreementsi) that, if terminated, or if such Contract expired without being renewed, would have through (xx) is referred to herein as a “Company Material Adverse EffectContract.”
(b) With respect to each Material Contract listed Except for this Agreement or as set forth in Part 2.9(aSection 5.21(a) of the Company Disclosure Schedule, as of the date hereof, none of the Company or any of the Company Subsidiaries is a party to or bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) that is to be performed after the date hereof that has not been filed as an exhibit to or incorporated by reference in a Company SEC Document.
(c) Each Company Material Contract is, to the Knowledge of the Company, is valid and binding and enforceable against the Company in full force and effect and, to the Knowledge of Company’s Knowledge, enforceable against the Company, against each other party or parties thereto other than the Company, in accordance with its terms, subject to except as such enforceability may be limited by the Bankruptcy and Equity Exception. Since December 31, 2015, (Ai) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except except for breaches, violations or defaults which have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of the Company Subsidiaries, nor to the Company’s Knowledge any other party to a Company Material Contract, is not in violation of 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, any of such Company Material Contract, and, to and (ii) neither the Knowledge Company nor any of the CompanyCompany Subsidiaries has received written notice that it has breached, no other party to such violated or defaulted under any Company Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company which has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual been cured or possible violation or breach of, or default under, any Material Contract by the Companyresolved. The Company has made available to Parent true True and complete copies of each such the Company Material Contract in all Contracts and any material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific have been made available to provisions that make such Contract a Material Contract)the Investors.
Appears in 2 contracts
Sources: Investment and Transaction Agreement (Id Systems Inc), Investment and Transaction Agreement (Pointer Telocation LTD)
Material Contracts. (a) Part 2.9(a) Schedule 3.17 sets forth a list of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, all Material Contracts as of the date of this Agreement Agreement. The Company has heretofore made available to the Investors true, correct and complete copies of all written or oral (in the case of oral agreements or understandings, the Company has provided written summaries thereof to the Investors) contracts and agreements (and all amendments, modifications and supplements thereto and all side letters affecting the obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or by which any of its properties or assets are otherwise bound of that are material to the following categories (such Contracts required to be disclosed under Part 2.9(a) business, properties or assets of the Company Disclosure Scheduleand its Subsidiaries, the “Material Contracts”):
including, without limitation, (i) Contracts or arrangements that purport to limit, curtail or restrict the ability of the Company or any Contract of its Subsidiaries to compete in any geographic area or line of business, (ii) Contracts or group of related Contractsarrangements, including charters or similar agreements with respect to Vessels (as hereinafter defined), other than a Company Plan, that requires future payments by or to under which the Company or any of its Subsidiaries has potential revenues, benefits liabilities or obligations in excess of $100,000 250,000, other than Gulf Offshore Contracts, (iii) Contracts or arrangements that are not terminable by the Company or such Subsidiary without penalty on less than sixty (60) days' notice, (iv) Contracts or arrangements that would be required to be filed as an exhibit to a Form 10-K filed by the Company with the Commission on the date hereof, (v) any employment, severance, product design or development, personal services, consulting, non-competition or indemnification Contracts, (vi) Contracts or arrangements granting a right of first refusal or first negotiation, (vii) partnership or joint venture Contracts, (viii) Gulf Offshore Contracts that have a term in any calendar excess of one-year, including (ix) Contracts or arrangements with any Governmental Authority, (x) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any such Contract pursuant to which indebtedness for borrowed money may be incurred, or any guaranty or suretyship Contract or Contracts pursuant to which a Lien is granted, (or group of such xi) Contracts that are relatedgranting registration rights, (xii) for the purchaseany lease, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products sublease or other personal propertyContract, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under real property and pursuant to which the Company have or any indemnification obligationsSubsidiary has potential liabilities or obligations in excess of $250,000, other than and (xiii) commitments and Contracts to enter into any of the foregoing (collectively, together with any such Contracts entered into in compliance with Section 5.01 hereof, the Ordinary Course "Material Contracts"). Each of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt Material Contracts constitutes the valid and legally binding obligation of the Company or providing for its Subsidiaries and, to the creation Company's Knowledge, the other parties thereto, enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) general applicability relating to any loan or advance to any Person which affecting creditors' rights or by general equity principles), and is outstanding as of the date of this Agreement (other than immaterial advances to employees in full force and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting effect. To the Company's Knowledge, or, after the Closing, Parent or the Surviving Entity from engaging in there is no material default under any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Material Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000its Subsidiaries or by any other party thereto, individually and no event has occurred that with the lapse of time or in the aggregate; and
(xvi) any Contract not otherwise listed giving of notice or required to be listed in Part 2.9(a) of both would constitute a material default thereunder by the Company Disclosure or any of its Subsidiaries or any other party. Except as set forth on Schedule (including 3.17, no party to any Material Contract has given written notice to the Company Intellectual Property Agreements) that, if terminatedor any of its Subsidiaries of, or if such Contract expired without being renewed, would have made a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable written claim against the Company and, to the Knowledge or any of the Company, against each party thereto other than the Company, in accordance its Subsidiaries with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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 ofrespect to, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or material breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Seabulk International Inc), Stock Purchase Agreement (Seabulk International Inc)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth Except as disclosed in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(aSection 4.19(a) of the Company Disclosure Schedule, neither the “Material Contracts”):Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts as of the date hereof:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any partnership, joint venture, strategic alliance, collaboration, co-promotion, research and development project or other similar Contract (but excluding, for the avoidance of doubt, any distribution, agency or group clinical agreements entered into in the ordinary course of related Contractsbusiness);
(iii) any Contract (but excluding any distribution or agency agreements containing the Company’s standard terms and conditions and entered into in the ordinary course of business) that limits in any material respect the freedom of the Company or any of its Affiliates to compete in any line of business, therapeutic area or geographic region, or with any Person, or otherwise materially restricts the research, development, manufacture, marketing, distribution or sale of any product or service by the Company or any of its Affiliates;
(iv) any Contract (but excluding any distribution or agency agreements containing the Company’s standard terms and conditions and entered into in the ordinary course of business) that contains exclusivity or “most favored nation” provisions, or any Contract that grants any right of first refusal or right of first offer to any Person relating to any Product or Product candidate;
(v) any Contract (but excluding any distribution or agency agreements containing the Company’s standard terms and conditions and entered into in the ordinary course of business) that requires the Company or any of its Subsidiaries to (A) purchase or sell a minimum quantity of goods relating to any product or product candidate and that involves expenditures or receipts in excess of $1,000,000 in any calendar year remaining in its term, or (B) purchase or sell goods relating to any product or product candidate exclusively, in each case from or to any Person;
(vi) any employment Contract applicable to any Key Employee which the Company has or could be reasonably expected to have any material Liability;
(vii) any Contract relating to indebtedness for borrowed money or any financial guarantee (whether incurred, assumed, guaranteed or secured by any asset), other than a Company Plan, that requires future payments by or to Contracts solely among the Company and its wholly owned Subsidiaries;
(viii) any Contract relating to any loan or other extension of credit made by the Company or any of its Subsidiaries, other than (A) Contracts solely among the Company and its wholly owned Subsidiaries and (B) accounts receivable in excess the ordinary course of business of the Company and its Subsidiaries consistent with past practice;
(ix) any Contract relating to any swap, forward, futures, warrant, option or other derivative transaction;
(x) any Contract (but excluding any distribution or agency agreements containing the Company’s standard terms and conditions and entered into in the ordinary course of business) that (A) involves future expenditures or receipts by the Company or any of its Subsidiaries of more than $100,000 1,000,000 in any calendar yearyear remaining in its term and (B) cannot be terminated by the Company or the applicable Subsidiary(ies) on less than 90 days’ notice without material payment or penalty;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries has continuing obligations or interests involving (A) “milestone” or other contingent payments, including any such Contract (upon the achievement of regulatory or group of such Contracts that are related) for the purchasecommercial milestones, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products which “milestone” or other personal propertycontingent payments could exceed $1,000,000 in the aggregate, or for (B) payment of royalties or other amounts calculated based upon any revenues or income of the provision Company or receipt any of servicesits Subsidiaries which royalties or other amounts are reasonably expected to exceed $1,000,000 in any calendar year remaining in its term, in each case to that cannot be terminated by the extent the Contract is not terminable Company or its Subsidiaries without penalty on without more than 90 days’ notice without material payment or shorter noticepenalty;
(iixii) any Contract relating to the acquisition or disposition by the Company of any operating business for aggregate maximum consideration (including “earn-outs”) in excess of $1,000,000 (whether by merger, sale of stock, sale of assets or assets (other than otherwise) pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company or any of its Subsidiaries has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification material continuing obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for including “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or moreindemnities;
(xiii) any lease, sublease, rental or occupancy agreement, license (Contract not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest described in any real other subsection of this Section 4.19 that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or personal propertymanufacturing of any material product, which, if terminated or not renewed, would reasonably be expected to have a Company Material Adverse Effect;
(xiv) any Contract with any sole-source supplier of material tangible products or services relating to any material product of the Company Intellectual Property Agreements; andor its Subsidiaries;
(xv) any Contract between the Company or any of its Subsidiaries, on the one hand, and any officer, director or Affiliate (excluding any Contract disclosed in Part 2.14(fother than a wholly owned Subsidiary) of the Company Disclosure Schedule) that contains a change or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation Rule 12b-2 and Rule 16a-1 of the Contemplated Transactions and would result in payments by Exchange Act), on the other hand, including any Contract pursuant to which the Company or any successor thereto of its Subsidiaries has an obligation to indemnify such officer, director, Affiliate, associate or immediate family member, except for any Contract involving employment, change in excess of $100,000control, individually indemnification, stock option or similar Contracts entered into in the aggregate; andordinary course of business;
(xvi) any Contract not otherwise listed agreement with a Governmental Authority that provides for payments of $1,000,000 in any calendar year remaining in its term;
(xvii) any agreement with any surgeon, physician or required to be listed other health care professional that that provides for $250,000 in Part 2.9(aany calendar year remaining in its term; or
(xviii) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) thatany stockholders, if terminatedinvestors rights, registration rights or if such Contract expired without being renewed, would have a Company Material Adverse Effectsimilar agreement or arrangement.
(b) With respect The Company has made available to Parent a true and complete copy of each agreement, contract, plan, arrangement or commitment required to be disclosed pursuant to Section 4.19 (each, a “Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesContract”). Except for breaches, violations or defaults which have would not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Material Contracts is in full force and effect, and is a valid and binding Contract of the Company is not or its Subsidiaries, as applicable, and, to the Company’s knowledge, of each other party thereto, enforceable against the Company or such Subsidiary, as applicable, and, to the Company’s knowledge, each other party thereto, in violation accordance with its terms, and (ii) neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Material Contracts. (a) Part 2.9(a) Except as Previously Disclosed, neither ▇▇▇▇▇▇ nor any of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company Subsidiaries is a party or by which any of its properties or assets are otherwise to, and is bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleby, the “Material Contracts”):
(i) any Contract material contract, as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC, which has not been filed as an exhibit to ▇▇▇▇▇▇’▇ SEC Documents or any other material agreement or similar arrangement (any contract or group commitment which could reasonably be expected to involve expenditures or receipt by ▇▇▇▇▇▇ or any of related Contracts), other than a Company Plan, that requires future payments by or to the Company its Subsidiaries in excess of $100,000 25,000 in the aggregate shall be deemed material for these purposes) whether or not made in the ordinary course of business (other than loans or loan commitments and funding transactions in the ordinary course of business consistent with past practice of ▇▇▇▇▇▇ Bank) or any agreement restricting the nature or geographic scope of its business activities in any calendar yearmaterial respect, including (ii) any agreement, indenture or other instrument relating to the borrowing of money by ▇▇▇▇▇▇ or any of its Subsidiaries or the guarantee by ▇▇▇▇▇▇ of any of its Subsidiaries of any such Contract obligation, other than instruments relating to transactions entered into in the ordinary course of business consistent with past practice, (iii) any agreement, arrangement or group commitment relating to the employment of such Contracts a Person who is or was a director or officer or to the employment, election, retention in office or severance of any present or former director or officer, (iv) any agreement, arrangement or commitment that are related) for would obligate ▇▇▇▇▇▇ or any ▇▇▇▇▇▇ Subsidiary to pay any stay or retention bonus or change-in-control, severance or termination payment to any current or former director or officer as a result of the purchase, lease consummation of the Transactions or sale the separation from service of real property, raw materials, goods, commodities, utilities, equipment, supplies, products any director or other personal propertyofficer following consummation of the Transactions, or for the provision (v) any contract, agreement or receipt of servicesunderstanding with a labor union, in each case to the extent the Contract is not terminable without penalty on 90 days’ whether written or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectoral.
(b) With respect to each Material Contract listed Neither ▇▇▇▇▇▇ nor any of its Subsidiaries is in Part 2.9(a) default under any material agreement, commitment, arrangement, lease, insurance policy or other instrument whether entered into in the ordinary course of business or otherwise and whether written or oral, and there has not occurred any event that, with the Company Disclosure Schedulelapse of time or giving of notice or both, would constitute such Material Contract isa default, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except except for breaches, violations or such defaults which have not had, and would reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Effect on ▇▇▇▇▇▇.
Appears in 2 contracts
Sources: Merger Agreement (Community Bank System Inc), Merger Agreement (Community Bank System Inc)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule 5.22 lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (and excluding this Agreement itself) all of the following contracts and other agreements or commitments (whether oral or written) to which Seller or Clinsite is a party and which relate to the conduct of the Business (other than immaterial advances contracts and other agreements which are not Assumed Liabilities or are not included in the Acquired Assets (collectively, the "Material Contracts"):
(a) employment, consulting, bonus, profit-sharing, percentage compensation, deferred compensation, pension, welfare, retirement, stock purchase or stock option plans and agreements and commitments with the directors or Personnel of Seller, excluding agreements and commitments terminable by Seller on not more than 30 days' notice without liability or penalty, and plans disclosed in Schedule 5.17(c);
(b) notes, mortgages, contracts, agreements, and commitments for the repayment or borrowing of money by Seller in excess of $10,000 in any one case, or for a line of credit including borrowings by Seller in the form of guarantees of, indemnification for, or agreements to employees acquire any obligations of others, and consultants all security or pledge agreements related thereto;
(c) contracts, agreements, and commitments relating to any joint venture, partnership, strategic alliance, or sharing of profits or losses with any Person;
(d) contracts, agreements, and commitments containing covenants purporting to limit the freedom of Seller or any Personnel to compete in any business or in any geographic area;
(e) contracts, agreements, and commitments requiring payments or distributions to any shareholder, director, or Personnel of Seller, or any relative or affiliate of any such Person;
(f) material contracts, agreements, licenses and commitments relating to Computer Software;
(g) contracts, agreements, and commitments not disclosed on any other Schedule to this Agreement and which involve or may involve the payment or receipt by Seller (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services, or otherwise) of more than $25,000 per year or $50,000 over the initial term thereof, or are otherwise material to the Business;
(h) contracts, agreements and commitments not made in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xvi) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure all Real Property Leases. Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to 5.22 identifies whether each Material Contract listed is to be an Assigned Contract, but subject to Section 2.04. Seller and Clinsite have made true and complete copies of all the Material Contracts available to Purchaser. Except as set forth in Part 2.9(aSchedule 5.22, there are no transactions relating to the Business presently pending or planned or initiated or completed since December 31, 1999 between Seller and any shareholder, officer, director, or Personnel of Seller, or any relative or Affiliate of any such Person, including any contract, agreement, or other arrangement (i) providing for the furnishing of services by Seller, (ii) providing for the rental of real or personal property by Seller, or (iii) otherwise requiring payments from Seller (other than for services as officers or directors of Seller) to any such Person or corporation, partnership, trust, or other entity in which any such Person has a direct or indirect interest as a shareholder, officer, director, trustee, or partner. All of the Company Disclosure ScheduleMaterial Contracts are in full force and effect, such Material Contract isexcept as provided in Schedule 5.22. Except as set forth in Schedule 5.22, to neither Seller, nor, To the Knowledge of the CompanySeller, binding and enforceable against the Company andany other party thereto, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of has breached any material provision of, or taken or failed to take is in material default under, the terms of, nor does any act condition exist which, with notice or without notice, lapse of time, or both, would constitute a default under the provisions ofcause Seller or, any Material Contract, and, to To the Knowledge of the CompanySeller, no any other party to such Material Contract is be in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modificationscontract, amendments and supplements thereto and waivers thereunderagreement, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)or commitment.
Appears in 2 contracts
Sources: Asset Purchase Agreement (SFBC International Inc), Asset Purchase Agreement (SFBC International Inc)
Material Contracts. (a) Part Section 2.9(a) of the Company Seller Disclosure Schedule Letter lists each Contract (other than the following written Contracts that any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that Transferred Entity is in effect, and that has not expired a party to or been terminated in accordance with its terms, bound by as of the date of this Agreement, except for this Agreement and any Contracts with no remaining obligations thereunder and, with respect to which customer Contracts and supplier Contracts, except for purchase orders (collectively, subject to clause (i) below, and together with the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure ScheduleIP License Agreements, the “Material Contracts”):
(i) any Contract (relating to any incurrence, assumption or group guarantee of related Contracts), other than a Company Plan, that requires future payments by or to the Company Indebtedness in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice1,000,000;
(ii) any Contract relating to the acquisition joint ventures, partnerships, franchising, royalty payments or disposition by the Company other similar agreements or arrangements and/or any Contract relating to ownership of or investments in any operating business or assets enterprise (other than pursuant than, in each case, immaterial ancillary agreements relating to non-exclusive licenses or grants any of non-exclusive rightsthe foregoing); ;
(Biii) any Contract or series of related Contracts, including any option agreement, relating to the acquisition or disposition by the Company of any operating business or division thereof, capital stock or other equity securities or assets of any other Person (whether by merger, consolidation or other business combination, sale of stock or other securities, sale of assets or otherwise), including any indemnification agreements or any other Contracts containing outstanding indemnification rights or obligations in connection therewith (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsthan, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guarantyeach case, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or immaterial ancillary agreements relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liensforegoing); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Partythat contains: (A) most favored nation clauses; (B) non-competition obligations; or (BC) material exclusivity obligations or similar material restrictions, in each case, binding on any Contract Transferred Entity or the Business that provides for “earn-outs” is not terminable by such Transferred Entity upon notice of thirty (30) days or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)less;
(v) any collective bargaining agreement Contract under which any Transferred Entity has made outstanding advances or similar Contract with loans to any trade union, works council or other labor organizationPerson;
(vi) any offer letter, employment agreement, independent contractor agreement Contract restricting the ability of Seller or any of its Affiliates (including any Transferred Entity) to sell any capital stock or other Contract with equity securities or assets of any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallyTransferred Entity;
(vii) any Contract that is made by any Transferred Entity with a settlement, conciliation, or similar agreement Governmental Authority (other than any Contract entered into with any Governmental Body or Authority in China that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreementis acting as a commercial enterprise);
(viii) all joint ventureany Contract with a labor union, partnership (involving sharing works council or other organization representing employees of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)Transferred Entity;
(ix) any Contract under which any Governmental Body has any material rightsthe top ten (10) customer Contracts (based on aggregate total sales in U.S. dollars by the Transferred Entities for the twelve (12)-month period ended on the Balance Sheet Date);
(Ax) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another PersonReal Property Leases;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of top ten (10) supplier Contracts (based on aggregate total purchases in U.S. dollars by the CompanyTransferred Entities for the twelve (12)-month period ended on the Balance Sheet Date);
(xii) any Contract involving commitments a remaining commitment by the Transferred Entities to make pay capital expenditures or to Contract, purchase or sell assets involving in excess of $100,000 or more1,000,000;
(xiii) any leaseemployment Contract with any Business Employee that provides for annual base salary in excess of $200,000, subleaseany employment Contract with any Business Employee that is included within the definition of “Knowledge of Seller,” and any change of control, rental retention or occupancy agreement, license severance Contracts (not relating to Intellectual Property), installment, and conditional sale agreement exclusive of any generally-applicable severance policy) with (or agreement under which otherwise for the Company is the lessee or lessor benefit of, or owns, uses or operates ) any leasehold or other interest in any real or personal propertyBusiness Employee;
(xiv) any Contracts with consultants or independent contractors that provide services to the Company Intellectual Property Agreements; andBusiness that provide for the payment of compensation, fees or payments in excess of $200,000 for any year, or that have a term of longer than one year or are not terminable within one year or less without any penalty;
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause Contracts relating to staffing companies, temporary employment agencies or similar provision companies that would be reasonably be expected provide services to be triggered in connection with the consummation Business that provide for the payment of the Contemplated Transactions and would result in compensation, fees or payments by the Company or any successor thereto in excess of $100,000, individually or 200,000 in the aggregate; andany year;
(xvi) any Contract non-competition, non-solicitation and confidentiality Contracts with any Business Employee whose current base salary exceeds $200,000 in any year or with any Business Employee that is included within the definition of “Knowledge of Seller;” and
(xvii) any other Contract, excluding customer or supplier Contracts, involving the expenditure of amounts in excess of $1,000,000 in any year that is not otherwise listed terminable by the Transferred Entities upon notice of thirty (30) days or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectless.
(b) With respect to A true and complete copy of each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, andincluding all amendments and supplements thereto, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has been made available to Parent true and complete copies of each such Material Contract Buyers, except as set forth in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material ContractSection 2.9(b).
Appears in 2 contracts
Sources: Purchase Agreement (Silgan Holdings Inc), Purchase Agreement (WestRock Co)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set 4.9 sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date hereof each Other Material Contract, excluding any Other Material Contract that is a Transferred Asset.
(b) Except for the Other Material Contracts listed on Schedule 4.9, neither of this Agreement to which the Company Companies is a party to or is bound by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):any:
(i) as of the date hereof, Programming Agreements;
(ii) partnership or joint venture agreements;
(iii) contracts with another Person materially limiting or restricting the ability of the Companies to (A) enter into or engage in any Contract market or line of business or (B) disclose confidential information;
(iv) contracts under which the Companies have created, incurred, assumed or group of related Contracts)guaranteed any indebtedness for borrowed money, or any capitalized lease obligation;
(v) material settlement, conciliation or similar contracts or agreements other than a Company Plan, that requires future payments by or those entered into subsequent to the Company date hereof in compliance with Section 7.12;
(vi) contracts or agreements containing provisions that provide to any Person a first refusal, first offer or similar preferential right to purchase or acquire any properties or assets of, or equity interests in, the Companies;
(vii) powers of attorney or other similar agreements or grants of agency;
(viii) agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $100,000 50,000 or providing severance benefits in excess of the Companies’ policies or practices for severance pay set forth on Schedule 4.10, other than those entered into subsequent to the date hereof in compliance with Section 7.12;
(ix) agreement under which it has advanced or loaned any calendar yearamount to any of its directors, including any such Contract officers, and employees outside the ordinary course of business;
(x) other contracts, agreements, commitments, understandings or group of such Contracts that are related) for instruments involving the purchase, lease purchase or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products goods or other personal property, materials or for the provision performance or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent involving payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental license or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or other agreement under which the Company is Companies hold any Leased Real Property (other than the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;Leases set forth on Schedule 4.8(b)); or
(xiv) the Company Intellectual Property Agreements; and
(xvxii) any additional Other Material Contract (excluding any Contract disclosed other than those entered into subsequent to the date hereof in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection compliance with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectSection 7.12.
(bc) With respect to each Material Contract listed in Part 2.9(a) Each of the Company Disclosure ScheduleOther Material Contracts is (or, such Material Contract is, to in the Knowledge case of the CompanyCable Venture, upon entry of the Confirmation Order will be) a valid and binding and obligation of the Cable Venture or Cable Corp., enforceable against the Company andCable Venture or Cable Corp., to as the Knowledge of the Company, against each party thereto other than the Companycase may be, in accordance with its terms. Neither Company, subject nor to (A) Laws the Companies’ Knowledge, any other party thereto, is in breach or default in any material respect under any of general application relating the Other Material Contracts to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or it is a party nor in the aggregate, a Company Material Adverse Effect, the Company is not in violation receipt of any provision of, written claim of breach 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, any such Other Material Contract, and, to the Knowledge Contracts. Neither of the Company, no other party to such Material Contract is in violation of Companies nor any provision, 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 any Material Contract. Since January 1, 2021, the Company Seller Person has not received any written notice orfrom any parties to any of the Other Material Contracts of such parties’ intent to not renew, cancel or terminate any of the Other Material Contracts (except in the ordinary course of business with respect to subscriber, multiple dwelling, bulk billing or commercial service agreements). The Retained Programming Agreements have been, or prior to the Closing will be, validly assigned, in accordance with their terms, to the Knowledge of the Company, other communication regarding any actual Cable Venture or possible violation or breach of, or default under, any Material Contract by the Company. to Cable Corp.
(d) The Company Cable Venture has made available to Parent true the Buyer true, correct and complete copies of all of the written Material Contracts and a written summary setting forth the material terms and conditions of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a oral Material Contract).
Appears in 2 contracts
Sources: Interest Acquisition Agreement (Arahova Communications Inc), Interest Acquisition Agreement (Adelphia Communications Corp)
Material Contracts. (a) Part 2.9(aSection 4.16(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termslists, as of the date of this Agreement Agreement, the following types of contracts and agreements to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts contracts and agreements as are required to be disclosed under Part 2.9(aset forth on Section 4.16(a) of the Company Disclosure Schedule, Schedule but excluding any Plan being the “Material Contracts”):
(i) any Contract (all contracts and agreements involving obligations of, or group of related Contracts)payments to, other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year(other than obligations of, including any such Contract (or group of such Contracts that are related) for payments to, the purchase, lease Company arising from purchase or sale agreements entered into in the ordinary course of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticebusiness);
(ii) all contracts and agreements (A) that involve the license of any Contract relating Intellectual Property Rights to or from the Company (but excluding any (1) nonexclusive licenses (or sublicenses) of Company-Owned IP granted to customers in the ordinary course of business that are substantially in the same form as the Company’s standard form customer agreements as have been provided to the acquisition SPAC on or disposition by prior to the Company date of any operating business or assets this Agreement; (other than pursuant to 2) non-exclusive licenses or grants granted to service providers who access Company-Owned IP on behalf of nonthe Company as part of their provision of services; (3) nondisclosure agreements entered into in the ordinary course of business; (4) licenses to unmodified, generally commercially available, “off-exclusive rightsthe-shelf” Software with a replacement cost and/or aggregate annual license and maintenance fees of less than $75,000) (such Software, “Shrink Wrap Code”); and (B5) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which granted to the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); under Company’s standard form of employment agreement or (CB) that contains a covenant not to s▇▇ or constitutes a concurrent use agreement, settlement agreement or co-existence agreement, in each case, with respect to any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of BusinessCompany-Owned IP;
(iii) all contracts and agreements that (A) involve the granting of rights to manufacture, produce, assemble, license, market or sell the Company’s Products or (B) limit, or purport to limit, in any guarantymaterial respect, surety the Company’s exclusive right to develop, manufacture, assemble, distribute, market or performance bond sell its Products or letter that otherwise limit, or purport to limit, the ability of credit issued the Company to compete in any line of business or postedwith any person or entity or in any geographic area or during any period of time, as applicable, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(iv) all contracts and agreements involving indemnification by the Company with respect to infringement of Intellectual Property Rights (excluding indemnity obligations of the Company included in (A) nonexclusive licenses or sublicenses of Company-Owned IP granted to customers in the ordinary course of business that are substantially in the same form as the Company’s standard form customer agreements as have been provided to the SPAC prior to the date of this Agreement; (B) any Contract evidencing or relating non-exclusive licenses granted to Debt service providers who access Company-Owned IP on behalf of the Company or providing for as part of their provision of services; and (C) licenses to Shrink Wrap Code);
(v) all contracts and agreements involving the creation disposition of or granting any Lien upon any a material portion of the property Company’s assets or assets the acquisition of the business or securities or ownership interests of another person;
(vi) all contracts and agreements involving material uncapped indemnity obligations of the Company (excluding Permitted Liensother than those excluded from disclosure under Section 4.16(a)(iv));
(vii) all partnership, joint venture or similar agreements;
(viii) all contracts and agreements with any Governmental Authority to which the Company is a party, other than any Company Permits;
(ix) all contracts or arrangements that result in any person or entity holding a power of attorney from the Company that materially impacts the Company’s business, other than powers of attorney granted to law firms in the ordinary course of business in connection with patent prosecution;
(x) all leases or master leases of personal property reasonably likely to result in annual payments by or to the Company of $250,000 or more in a 12-month period; and
(xi) all collective bargaining agreements, labor contract or other written agreement or arrangement with any labor union, collective bargaining agent, industrial organization or any employee organization and all contracts, agreements or arrangements with a PEO or other contract, agreement or arrangement providing for co-employment of employees of the Company (each a “PEO Agreement”).
(i) each Material Contract is a legal, valid and binding obligation of the Company and, to the knowledge of the Company, the other parties thereto, and the Company is not in any material respect in breach or violation of, or in any material respect in default under, any Material Contract nor has any Material Contract been canceled by the other party; (Cii) to the Company’s knowledge, no other party is in any Contract material respect in breach or violation of, or in any material respect in default under, any Material Contract; and (1iii) relating the Company has not received any written, or to the knowledge of the Company, oral claim of default under any loan such Material Contract. The Company has prior to the date of this Agreement furnished or advance made available to any Person which is outstanding the SPAC true, complete and correct copies of all Material Contracts in effect as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencyAgreement, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company amendments thereto that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectnature.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Business Combination Agreement (Tailwind Acquisition Corp.), Business Combination Agreement (Tailwind Acquisition Corp.)
Material Contracts. (a) Part 2.9(aOn the date hereof, except for Contracts relating to entities, including without limitation partnership, joint venture, limited liability company, invested by but not Controlled by the Group Companies or as set forth in Section 4.12(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Schedule, none of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Group Company is a party to or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):by:
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or relating to the Company in excess formation, creation, operation, management or Control of $100,000 in any calendar yeara partnership, including any such Contract (joint venture, limited liability company or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticesimilar arrangement;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets involving a loan (other than pursuant accounts receivable from trade debtors in the ordinary course of business) or advance to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant travel and entertainment allowances to non-exclusive licenses or grants the employees of non-exclusive rights) under which the any Group Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into extended in the Ordinary Course ordinary course of Businessbusiness), or investment in, any Person, of more than RMB15,000,000 in any calendar year on its face;
(iii) any guaranty, surety Contract involving indebtedness or performance bond obligation (contingent or letter otherwise) of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt Group Company of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other more than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractRMB15,000,000;
(iv) any Contract creating that involves, or purporting contains restrictions with respect to, (A) payment of dividends or other distributions with respect to create equity interests of any partnershipGroup Company, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) pledging of share capital of any Contract that provides for “earn-outs” Group Company, or other contingent payments (C) the issuance of a guaranty by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Group Company;
(v) any collective bargaining agreement Contract that contains a put, call or similar Contract with right pursuant to which any trade unionGroup Company could be required to purchase or sell, works council as applicable, any equity interests of any Person or other labor organizationmaterial assets;
(vi) any offer letter, employment agreement, independent contractor agreement non-competition Contract or other Contract with that purports to limit, curtail or restrict the ability of any current Group Company Service Provider pursuant to which compete in any geographic area, industry or line of business or grants exclusive rights to the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallycounterparty thereto;
(vii) any Contract involving copyright, or any other Intellectual Property that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after Group Company other than those in the date ordinary course of this Agreementbusiness;
(viii) all joint ventureany Contract that contains provisions on “most favored nations”, partnership (involving sharing or rights of profits) first refusal or similar Contracts (rights over any of the Ordinary Shares, the Series A Preferred Shares and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)Series B Preferred Shares;
(ix) any Contract under which that involves the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Governmental Body has Equity Securities of any material rightsGroup Company, or the acquisition or disposition of any assets or business by any Group Company involving an amount of not less than RMB15,000,000;
(Ax) any Contract containing covenants restricting or purporting pursuant to restrict competition which, in either case, have, would have or purport to have the effect which any Person obtains Control of prohibiting the any Group Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agentthe waiver, representativecompromise, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale settlement of goods or services of the Company;any Action over RMB15,000,000; or
(xii) any Contract involving commitments that is otherwise material to make capital expenditures or a Group Company. Each such Contract described above is referred to herein as a “Material Contract”, purchase or sell assets involving $100,000 or more;
(xiii) any leasewhich shall include, subleaseinter alia, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which all of the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(fControl Documents. Section 4.12(a) of the Company Disclosure Schedule) that Schedule contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation true, correct and complete list of the Contemplated Transactions all Material Contracts, and would result in payments a copy of each Material Contract has been provided by the Company or any successor thereto in excess of $100,000, individually or in to the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectPurchaser.
(bi) With respect to each Each Material Contract listed in Part 2.9(a) is a legal, valid and binding obligation of the each Group Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company that is a party thereto and, to the Knowledge best knowledge of the any Group Company, the other parties thereto, enforceable against each party thereto other than the Company, them in accordance with its terms, subject in each case subject, as to (A) Laws enforcement of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge Bankruptcy and Equity Exception, (ii) none of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice orGroup Companies nor, to the Knowledge best knowledge of the any Group Company, any other communication regarding any actual party thereto is in material breach or possible violation or breach of, or default under, any Material Contract by and no event has occurred or not occurred through any Group Company’s action or inaction or, to the best knowledge of any Group Company. The Company has made available to Parent true , the action or inaction of any third party, that, with or without due notice or lapse of time or both, would constitute a material breach or violation of, or default under, any Material Contract, and complete copies (iii) the Group Companies have not received any written claim or notice of each default, termination or cancellation under any such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 2 contracts
Sources: Share Subscription Agreement (9F Inc.), Share Subscription Agreement (9F Inc.)
Material Contracts. (a) Part 2.9(aSection 2.14(a) of the Company Disclosure Schedule lists each Contract sets forth a correct and complete list of all binding contracts, agreements, commitments, instruments or obligations (other than any Company Plan set forth in Part 2.15(awhether written or oral, contingent or otherwise) of the Company Disclosure Schedule(x) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise is bound, and under which any party has continuing obligations, (y) which constitute Purchased Assets or (z) by which any Purchased Assets will be bound or subject following the Closing, in each case (of clauses (x) – (z)) which falls into any of the following categories (such each, a “Material Contract”):
(i) the Franchise Agreements;
(ii) all contracts that contain any covenant (A) limiting the right of the Company or any Asset Seller to engage in any line of business or to compete with any Person in any line of business or in any geographic location, or (B) prohibiting the Company or any Asset Seller from engaging in business with any Person or levying a fine, charge or other payment for doing so;
(iii) all contracts resulting in payment by the Company to a third party in excess of $100,000 annually, in any individual case;
(iv) all contracts for the performance of services by the Company or any Asset Seller in excess of $100,000 annually, in any individual case;
(v) all contracts that require the Company to purchase more than 50% of its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(vi) all contracts that relate to the acquisition by the Company of any ownership interest in any other Person or business enterprise;
(vii) all contracts for the incurrence of indebtedness for borrowed money or the extension of credit (whether incurred, assumed, guaranteed or secured by any asset), other than accounts receivables and payables in the ordinary course of business consistent with past practice;
(viii) all contracts that grant to any third party a Lien (other than a Permitted Lien) on all or any of the Company’s properties and assets or any Purchased Assets;
(ix) all contracts regarding any Business Intellectual Property, including related maintenance and support agreements;
(x) all contracts that provide for the assumption of any Tax, environmental or other Liability of any Person, other than pursuant to customary indemnification provisions;
(xi) all agency, promotion, market research, marketing consulting and advertising contracts, other than Franchise Agreements;
(xii) all contracts containing any continuing “earn-out” or other contingent payment obligations of the Company or any Asset Seller; or
(xiii) all contracts that involve any joint venture, partnership or similar revenue sharing arrangement of the Company or any Asset Seller.
(b) The Stockholder has made available to Purchaser correct and complete copies of all of the Material Contracts required (other than any intercompany agreements that will be terminated as of Closing). All of the Material Contracts are valid, binding and in full force and effect in accordance with their terms, except to be disclosed the extent they have previously expired or terminated in accordance with their terms. Neither the Company nor any Asset Seller is in material violation of or material default under Part 2.9(aany Material Contract, and to the Company’s Knowledge, there is no existing or claimed material violation or material default by any other party to any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, is likely to constitute a material default by the Company or any Asset Seller under any Material Contract. Except as set forth on Section 2.14(b) of the Company Disclosure Schedule, the “there are no material disputes under any Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which pending and the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating not received notice pursuant to any loan or advance to Material Contract of any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other threatened material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectdisputes.
(bc) With respect to each Material Contract listed in Part 2.9(aExcept as set forth on Section 2.14(c) of the Company Disclosure Schedule, in the twelve (12) months prior to the date of this Agreement, neither the Company nor any Asset Seller has received notice pursuant to any Material Contract that the counterparty intends to terminate or request a material modification to such Material Contract is, to the Knowledge Contract. Except as set forth on Section 2.14(c) of the Company, binding Company Disclosure Schedule and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have except as would not had, and would reasonably be expected to havehave a Material Adverse Effect, individually or in the aggregate, (i) in the six (6) months prior to the date of this Agreement, neither the Company nor any Asset Seller has received, to the Company’s Knowledge (which for this purpose shall be actual knowledge), oral notice from any counterparty to a Franchise Agreement that such party intends to terminate or request a material modification to, or materially breach, such Franchise Agreement, and (ii) in the six (6) months prior to the date of this Agreement, to the Company’s Knowledge (which for this purpose shall be actual knowledge), none of the following circumstances has occurred: (1) the Company has provided a notice of non-renewal to the other party to a Franchise Agreement; (2) possession or control of the property that is the subject of the Franchise Agreement has been assumed by a receiver, management company, bankruptcy trustee, secured lender, or similar party that has not agreed to assume the Franchise Agreement (whether on a temporary or permanent basis); (3) at least 50% of the guest rooms at the property that is the subject of a Franchise Agreement have become un-rentable or otherwise out of service, whether as a result of fire, flood, or other natural disaster, the exercise of partial eminent domain, a life/safety issue or otherwise; or (4) a change of control of the property that is the subject of the Franchise Agreement, where the transferee has failed to assume the Franchise Agreement or enter into a new Franchise Agreement after 30 days. Except as set forth on Section 2.14(c) of the Company Disclosure Schedule and except as would not reasonably be expected to have a Material Adverse Effect, individually or in the Company is not aggregate, in violation the ninety (90) days prior to the date of 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, any Material Contract, andthis Agreement, to the Company’s Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021(which for this purpose shall be actual knowledge), the Company has not received any provided the franchisee with written notice orthat the franchisee is in default of the Franchise Agreement as a result of quality assurance issues, where the franchisee has not agreed in writing to a corrective action plan.
(d) Section 2.14(d) of the Company Disclosure Schedule identifies by jurisdiction and effective date all currently effective registrations under the Federal Trade Commission trade regulation rule entitled “Disclosure Requirements and Prohibitions Concerning Franchising,” 16 C.F.R. Section 436 et seq. and any other Law regulating the offer and/or sale of franchises, business opportunities, seller-assisted marketing plans or similar relationships (the “Franchise Laws”) that are applicable to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the CompanyBusiness. The Company and each Asset Seller has made available to Parent true and complete copies of each such Material Contract complied in all material respects with the Franchise Laws. None of the Company or any Asset Seller is subject to any Order that would prohibit or restrict the offer or sale of any Knights Inn Franchise in any jurisdiction within the United States.
(e) To the Company’s Knowledge, all funds administered by or paid to the Business by or on behalf of one or more Knights Inn Franchises at any time since January 1, 2015, including funds that the Knights Inn Franchises contributed for advertising and promotion, and any rebates and other payments made by suppliers and other third parties on account of the Knights Inn Franchises’ purchases from those suppliers and third parties, have been administered and spent in accordance in all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)material respects with the applicable Franchise Agreements.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Red Lion Hotels CORP)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set 3.11 sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, a complete and that has not expired or been terminated in accordance with its termscorrect list, as of the date of this Agreement Agreement, of all agreements of the following type to which the Company or any Company Subsidiary is a party or by which any of its properties or assets are otherwise may be bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedulecollectively, the “"Material Contracts”):
"): (i) material contracts; (ii) employment, severance, termination, consulting and retirement agreements; (iii) license agreements or distributor, dealer, manufacturer's representative, sales agency, advertising, property management or brokerage agreements; (iv) agreements with any Contract labor organization or other collective bargaining unit; (v) agreements for the future purchase of materials, supplies, services, merchandise or equipment involving payments of more than $10,000 individually (or group of related Contracts$40,000 in the aggregate for all such agreements) over its remaining term (including, without limitation, periods covered by any option to renew by either party), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract ; (or group of such Contracts that are relatedvi) agreements for the purchase, sale or lease of any real estate or other Assets; (vii) profit-sharing, bonus, incentive compensation, deferred compensation, stock option, severance pay, stock purchase, employee benefit, insurance, hospitalization, pension, retirement or other similar plans or agreements; (viii) agreements for the sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products Assets other than in the ordinary course of business or the grant of any preferential rights to purchase Assets; (ix) agreements which contain provisions requiring the Company or any Company Subsidiary to indemnify any person; (x) joint venture agreements or other personal property, or for agreements involving the provision or receipt sharing of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options)profits; or (Cxi) outstanding loans to any Contract under which persons or entities or receivables due from any Company Stockholders or any stockholders of the Company have Subsidiaries or any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt affiliates of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company Subsidiaries.
(excluding Permitted Liens); b) All the Material Contracts are valid and in full force and effect on the date hereof (Cexcept to the extent they have previously expired in accordance with their terms) any Contract (1) relating to any loan and constitute legal, valid and binding obligations of, and are legally enforceable against, the Company or advance to any Person the Company Subsidiary which is outstanding as of the date of this Agreement (other than immaterial advances to employees a party thereto, and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course knowledge of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent other party or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is parties thereto. All necessary governmental approvals with respect thereto required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments obtained by the Company or any successor thereto in excess of $100,000Company Subsidiary, individually as applicable, have been obtained, all necessary filings or in the aggregate; and
(xvi) any Contract not otherwise listed or registrations therefor required to be listed in Part 2.9(a) of made by the Company Disclosure Schedule (including or any Company Intellectual Property Agreements) thatSubsidiary, if terminatedas applicable, or if such Contract expired without being renewedhave been made, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract isand, to the Knowledge knowledge of the Company, binding there have been no threatened cancellations thereof and enforceable against no outstanding disputes thereunder. Each of the Company and, and the Company Subsidiaries has in all material respects performed all the obligations thereunder required to be performed by the Knowledge Company and the Company Subsidiaries to date. No party is in default in any material respect under any of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadMaterial Contracts, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is there has not in violation of occurred any provision of, or taken or failed to take any act which, event which (whether with or without notice, lapse of time, time or both, the happening or occurrence of any other event) would constitute such a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contractdefault. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true True and complete copies of each such all Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific Contracts have been delivered to provisions that make such Contract a Material Contract)Acquiror or made available for inspection.
Appears in 1 contract
Sources: Merger Agreement (Hagler Bailly Inc)
Material Contracts. (ai) Part 2.9(a) of Except for the Company Disclosure Schedule lists each Contract Benefit Plans and the Contracts filed as exhibits or incorporated by reference in the 2008 10-K or to the SEC Reports (other than any Company Plan set forth including the matters reflected on, reserved against, or disclosed in Part 2.15(a) of the notes to, the Company’s financial statements included therein), neither the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with nor any of its terms, as of the date of this Agreement to which the Company Subsidiaries is a party to or bound by which any Contract that: (A) is a “material contract” (as such term is defined in Item 601(b)(10) of its properties or assets are otherwise bound of Regulation S-K promulgated under the following categories (such Contracts required Securities Act) to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (performed in full or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body part after the date of this Agreement;
; (viiiB) all creates any material partnership, limited liability company agreement, joint venture, partnership (involving sharing of profits) venture or similar Contracts agreement entered into with any third party; (C) is a voting agreement or registration rights agreement; (D) relates to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset), other than agreements among direct and not including indirect wholly-owned Subsidiaries of the Company; (E) relates to the acquisition or disposition of any sharing business, a material amount of profits by a Third Party stock or assets, or any material assets or material real property other than in the ordinary course of business consistent with past practice, where such contract contains continuing material obligations or contains continuing indemnity obligations of the Company that are based on sales or any of goods its Subsidiaries; (F) materially limits the freedom of the Company or services any of its Subsidiaries, or would limit the freedom of the Investor or its Affiliates (other than the Company Products);
(ixor any of its Subsidiaries) after the Closing or materially limit the Company or any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, its Subsidiaries after the Closing, Parent or the Surviving Entity from engaging to compete in any line of business or activity with any Person or in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary heretoarea; (BG) any Contract in which the Company has granted “exclusivity” contains exclusivity obligations or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; restrictions (Cx) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty binding on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto of its Subsidiaries, (y) that would be binding on the Company or any of its Subsidiaries after the Closing or (z) that would be binding on the Investor or any of its Affiliates (other than the Company and its Subsidiaries) after the Closing, and, in excess the case of $100,000subclauses (x) and (y) of this clause (G), that materially affect or limit the Business or the operations of the Company or any of its Subsidiaries or (H) is a commitment or agreement to enter into any of the foregoing.
(ii) Except as has not had and would not, individually or in the aggregate; and
, reasonably be expected to have a Material Adverse Effect or, if the Restructuring is being effectuated through the confirmation of the Prepackaged Plan in the Prepackaged Plan Proceeding, except for any effects arising from the commencement of the Prepackaged Plan Proceedings, (xviA) any each Contract not otherwise listed disclosed in the Disclosure Letter or required to be listed in Part 2.9(adisclosed therein pursuant to Section 4(q)(i), Section 4(m) or Section 4(n) (each a “Material Contract”) is a valid and binding agreement of the Company Disclosure Schedule or a Subsidiary of the Company, as the case may be, and is in full force and effect except to the extent that the enforcement thereof may be limited by or subject to the Bankruptcy Exceptions, and (including Company Intellectual Property AgreementsB) thatnone of the Company, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) any Subsidiary of the Company Disclosure Schedule, such Material Contract isnor, to the Knowledge of the Company, binding and enforceable against any other party thereto is in default or breach in any material respect under (or is alleged, by a Person or Persons with the Company andright to cause an acceleration of or to exercise any other remedy under the applicable agreement or instrument, to be in default or breach in any material respect under) the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision terms of, or taken has provided or failed received any notice of any intention to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions ofterminate, any such Material Contract, and, (C) to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, event or taken or failed to take any act whichcircumstance has occurred that, with notice or without notice, lapse of time, time or both, would constitute an event of default thereunder or result in a default under termination thereof or would cause or permit the provisions acceleration or other changes of any Material Contractright or obligation or the loss of any benefit thereunder (any event or circumstance described pursuant to clause (B) or (C), a “Default”). Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete Complete copies of each such Material Contract in all material respects (including all modifications, modifications and amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific ) have been made available to provisions that make such Contract a Material Contract)the Investor.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 3.18(a) of the Company Seller Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termslists, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound hereof, each of the following categories Contracts of the Company and the Company Subsidiaries (except for any Contracts that are within the scope of Section 3.14 hereof) (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the being “Material Contracts”):
(i) any Contract relating to indebtedness for borrowed money (or group of related Contracts), other than a Company Plan, that requires future payments by or Contracts relating to the Company in excess creation of $100,000 in any calendar yeardeposit liabilities, including any such Contract (or group of such Contracts that are related) for the purchaserepurchase agreements, lease purchase or sale of real propertyfederal funds, raw materialsFederal Home Loan Bank advances, goods, commodities, utilities, equipment, supplies, products or other personal property, or for and certificates of deposit entered into in the provision or receipt ordinary course of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticebusiness consistent with past practice);
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company it is participating or has any executory covenants agreed to participate as a general partner, limited partner, limited liability company member, joint venturer or indemnification venture capital or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businesssimilar investor;
(iii) any guaranty, surety Contracts between or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of among the Company or providing for any Company Subsidiary, on the creation of one hand, and the Seller or granting any Lien upon any Affiliate of the property or assets of Seller, on the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contracthand;
(iv) any employment, severance, termination, employee-like consulting or retirement Contract creating binding on it for aggregate payments to any Person in any calendar year in excess of $50,000 or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or respect to the Company that have not yet been paid to the Company (excluding employment of, severance, retention or payment to, any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)its directors and executive officers;
(v) any collective bargaining agreement or similar Contract with any trade union, works council providing for annual fees or other labor organizationpayments by it equal to or in excess of $50,000 in the aggregate (other than Contracts that fall within the scope of another category of this Section 3.18(a));
(vi) any offer letterContract granting an Encumbrance, employment agreementother than Permitted Encumbrances, independent contractor agreement upon any of its properties or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallyassets;
(vii) any Contract that is a settlemententered into within the last five years relating to the acquisition or disposition of any business or assets (whether by merger, conciliationsale of stock, sale of assets or similar agreement otherwise) contemplating an exchange of value in excess of $1,000,000, other than Contracts entered into in the ordinary course of business consistent with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreementpast practice;
(viii) all joint ventureany non-competition or non-solicitation Contract that limits or purports to limit the manner in which, partnership (involving sharing the duration for which or the localities in which, its business is or could be conducted or the types of profits) business that it conducts or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)may conduct;
(ix) any material Contract under which any Governmental Body involving Intellectual Property or relating to the provision of data processing, network communication or other technical services to or by it (other than licenses for commercial “off-the-shelf” or “shrink-wrap” software that has any material rightsnot been modified or customized for the Company or Company Subsidiaries);
(x) any Contract relating to the settlement of any Action within the past three years with (A) any Contract containing covenants restricting Governmental Authority or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract Person (other than a Governmental Authority) for an amount in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights excess of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person100,000;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;Risk Management Contract; and
(xii) any Contract involving commitments to make capital expenditures or to Contractall written amendments, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, supplements and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest modifications in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) respect of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectforegoing.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Stock Purchase Agreement (New York Community Bancorp Inc)
Material Contracts. (a) Part 2.9(a) Section 3.15 of the Company Disclosure Schedule lists each Contract sets forth a list of all Company Material Contracts (other than any as hereinafter defined). The Company Plan set forth in Part 2.15(a) has heretofore made available to Parent correct and complete copies of the Company Disclosure Schedule) that is in effectall material written contracts and agreements (and all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement 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 its properties or assets are otherwise bound bound, including all: (i) (A) employment, severance, change in control, termination, labor, collective bargaining or consulting agreements (but excluding personal service contracts), (B) non-competition contracts, and (C) indemnification contracts with officers and directors of the following categories Company or any of its subsidiaries; (ii) partnership or joint venture agreements; (iii) agreements for the pending sale, option to sell, right of first refusal, right of first offer or any other contractual right to sell, dispose of, or lease (in excess of 20,000 square feet), by merger, purchase or sale of assets or stock or otherwise, (A) the Company Properties or any other real property or (B) any personal property, except for sales of personal property not exceeding $250,000 individually or $1,000,000 in the aggregate; (iv) loan or credit agreements, letters of credit, bonds, mortgages, indentures, guarantees, or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries or any such Contracts agreement pursuant to which indebtedness for borrowed money may be incurred, or evidencing security for any of the foregoing, excluding standard carveout guarantees and environmental guarantees; (v) agreements that purport to limit, curtail or restrict the ability of the Company or any of its subsidiaries to compete in any geographic area or line of business, other than exclusive lease provisions, non-compete provisions and other similar leasing restrictions entered into by the Company in the usual, regular and ordinary course of business consistent with past practice contained in the Company leases and in other recorded documents by which real property was conveyed by the Company to any user; (vi) contracts or agreements that would be required to be disclosed under Part 2.9(afiled as an exhibit to the Form 10-K or Forms 10-Q filed by the Company with the SEC since January 1, 2006; (vii) Tax Protection Agreements; (viii) each contract (including, without limitation, any brokerage agreements) entered into by the Company or any of its subsidiaries, which may result in total payments by or liability of the Company Disclosure Schedule, the “Material Contracts”):
(i) or any Contract (or group subsidiary of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations500,000 annually, other than any such Contracts entered into Company Space Leases, and any documents relating to the indebtedness described in the Ordinary Course of Business;
Section 3.15(a)(iv) hereof; PROVIDED, HOWEVER, any contract described in this clause (iiiviii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicablethat, by the Company; its terms, is terminable within 30 days (Bwithout termination fee or penalty) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement shall not be deemed to be a Company Material Contract; (other than immaterial advances to employees and consultants ix) the contracts included in the Ordinary Course Section 3.10 of Business) or (2) obligating or committing the Company Disclosure Schedule; (x) agreements for the pending purchase, option to make any such loans or advances; and (D) any currencypurchase, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing other contractual right to purchase or acquire or lease, by merger, purchase or sale of profits assets or losses by the Company with stock or otherwise, any Third Partyreal property for a purchase price in excess of $1,000,000; or (Bxi) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess any of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, its subsidiaries manages or similar agreement provides services with any Governmental Body or that imposes any monetary or other material obligations upon the Company respect to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services real properties other than Company ProductsProperties; (xii) agreements providing for any contingent payment or earnout to the seller of real property; (xii) agreements pursuant to which an Affiliate of the Company or any stockholder, director or officer of the Company provides services to the Company or any of the Company’s subsidiaries, including, without limitation, agreements that would be required to be disclosed in a proxy statement relating to an annual meeting of stockholders under the Exchange Act (the “Related Services Agreements”);; and (xiii) contracts and agreements to enter into any of the foregoing (such contracts and agreements referred to clauses (i) through (xiii) above, the “Company Material Contracts”). Section 3.15(a) to the Company Disclosure Schedule lists, as of September 30, 2006, the outstanding principal balance, maturity date and applicable interest rate (including the method or formula for calculating any interest that is not a fixed percentage of the principal balance) for the indebtedness evidenced by each loan listed on the Company Disclosure Schedule pursuant to Section 3.15(a)(iv) hereof.
(ixb) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting Each of the Company Material Contracts constitutes the valid and legally binding obligation of the Company or purporting to restrict competition whichits subsidiaries, enforceable against the Company or its subsidiaries, as the case may be, in either case, have, accordance with its terms (except as enforceability may be limited by the Bankruptcy Exceptions). There is no default (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation or default) under any Company Material Contract so listed by the Company as would have or purport would reasonably be likely to have the effect of prohibiting a Material Adverse Effect on the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant .
(c) Except as set forth in this Agreement or the agreements ancillary hereto; (BSection 3.15(c) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has, except as such may be incurred in the ordinary course of business, (i) that contains a change in control clause any continuing material contractual liability for indemnification or similar provision that would be reasonably be expected otherwise under any agreement relating to be triggered in connection with the consummation sale of the Contemplated Transactions and would result in payments real estate previously owned, whether directly or indirectly, by the Company or any successor thereto in excess of $100,000its subsidiaries, individually or except for standard indemnification provisions entered into in the aggregate; and
normal course of business, (xviii) any Contract not otherwise listed continuing liability to make any reprorations or required adjustments to be listed in Part 2.9(aprorations that may previously have been made with respect to any property currently or formerly owned by the Company or any of its subsidiaries, or (iii) any continuing contractual liability to pay any additional purchase price for any of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectProperties.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Material Contracts. (aSchedule 3.13(a) Part 2.9(a) sets forth an accurate and complete list of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following Contracts to which the Company is a party or and by which any it is currently bound or in respect of its properties which assets, rights or assets property are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of held for use by the Company Disclosure Schedule, the “Material Contracts”):by any other Person:
(i) all Contracts which contain restrictions with respect to payment of dividends or any Contract (or group other distribution in respect of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products capital stock or other personal property, or for equity interests of the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeCompany;
(ii) all Contracts relating to capital expenditures or other purchases of material, supplies, equipment or other assets or properties (other than purchase orders for inventory or supplies in the ordinary course of business) in excess of $10,000 individually;
(iii) all Contracts involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company extended in the ordinary course of business), or investment in, any Person or any Contract relating to the acquisition or disposition by the Company making of any operating business such loan, advance or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractinvestment;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing all Contracts involving Indebtedness of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Company;
(v) all Contracts (including so called take-or-pay or keep-well agreements) under which any collective bargaining agreement Person (other than the Company) has directly or similar Contract with any trade union, works council or other labor organizationindirectly guaranteed Indebtedness of the Company;
(vi) all Contracts granting or evidencing a Lien on any offer letterproperties or assets of the Company, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallythan a Permitted Lien;
(vii) all management service, consulting, financial advisory or any other similar type Contract that is a settlement, conciliation, or similar agreement and any Contracts with any Governmental Body investment or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreementcommercial bank;
(viii) all joint venture, partnership (involving sharing Contracts limiting the ability of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales to engage in any line of goods business or services other than Company Products)to compete with any Person;
(ix) all Contracts (other than this Agreement and any Contract under which agreement or instrument entered into pursuant to this Agreement) with (A) Seller, any Governmental Body has other Affiliate of the Company or any material rightsAffiliate of Seller (other than the Company) or (B) any current or former officer or director of the Company, Seller or any Affiliate of Seller;
(Ax) all Contracts (including letters of intent) involving the disposition or acquisition or the future disposition or acquisition of material assets or properties, or any Contract containing covenants restricting merger, consolidation or purporting similar business combination transaction, whether or not enforceable;
(xi) all Contracts involving any joint venture, partnership, strategic alliance, shareholders' agreement, co-marketing, co-promotion, co-packaging, joint development, distribution or similar arrangement;
(xii) all Contracts involving any material resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute;
(xiii) all Contracts involving a confidentiality, standstill or similar arrangement;
(xiv) all Contracts involving leases or subleases of personal property, including capital leases, to restrict competition whichwhich the Company is a party (as lessee or lessor);
(xv) all Contracts which are material to the Company and contain a "change in control" or similar provision;
(xvi) all Contracts including an indemnity by the Company for or against costs relating to infringement of any of the Company Intellectual Property (unless capped in liability at or below three months' of the Company's revenues thereunder);
(xvii) all Contracts which include an obligation of the Company to provide web hosting services or software maintenance services (unless, in either case, have, would have terminable by the Company on no more than thirty (30) days' prior notice);
(xviii) all network interconnection Contracts;
(xix) all Contracts currently in effect or purport pursuant to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” could have any future liability with respect to the Company's former temporary staffing operations;
(xx) all Contracts involving $10,000 or that requires more which are not cancelable by the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ thirty (30) days or shorter less notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;or
(xixxi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related all other Contracts that are material to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) business of the Company Disclosure Schedule) that contains taken as a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectwhole.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(a(i) Schedule 3.18 of the Disclosure Schedules sets forth a true and complete list of each of the Contracts and agreements that is of a type described below (other than the material Real Property Contracts) to which a member of the Company Disclosure Schedule lists each Contract Group or the Non-Controlled Joint Ventures Group (other than but solely, with respect to a member of the Non-Controlled Joint Ventures Group, to the extent of any Company Plan set forth such written contracts or agreements in Part 2.15(a) the possession of Seller or a member of the Company Disclosure ScheduleGroup) that is in effect, and that has not expired a party or been terminated in accordance with is (or its termsassets are) bound, as of the date of this Agreement to which hereof, and (ii) the Company is a party or by which any of its properties or assets are otherwise bound Electronic Data Room contains in Folder 2 the material Real Property Contracts in effect as of the following categories date hereof (such Contracts required to be disclosed under Part 2.9(aand agreements as described in this Section 3.18(a) of the Company Disclosure Schedule, the being “Material Contracts”):
(i) any Contract (or group of related Contracts)all Key Project Documents with respect to the Projects, other than a Company Plan, those that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticehave been fully performed;
(ii) any Contract (A) Contracts relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsIndebtedness, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guarantycontracts that, surety or performance bond or letter of credit issued or postedindividually, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing are for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which an amount that is outstanding as of the date of this Agreement (other less than immaterial advances to employees $7,500,000 and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” imposes a security interest or other contingent payments by or to Encumbrance on any material assets of any member of the Company that have not yet been paid to Group or the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Non-Controlled Joint Ventures Group;
(viii) Contracts that limit or purport to limit the ability of any member of the Company Group or the Non-Controlled Joint Ventures Group to compete in any line of business or with any Person or in any geographic area or during any period of time, other than those set forth in the Organizational Documents or any “tax equity” financing document of the Joint Ventures;
(A) the Organizational Documents of each member of the Company Group and the Non-Controlled Joint Ventures Group and (B) any partnership, joint venture, or limited liability company agreement or other Contract relating to any Equity Interests or other securities of a member of the Company Group or the Non-Controlled Joint Ventures Group;
(A) Contracts for the employment of any individual employee or service provider providing for a salary or base annual fee in excess of $[Redacted – Commercially Sensitive Information – Monetary Threshold] per year (other than any “at will” employment contract that may be terminated by the Company Group or, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group with no more 30 days’ notice without further Liability to the applicable member of the Company Group or the Non-Controlled Joint Ventures Group, or any other employment contract that may be terminated by the Company Group or the Non-Controlled Joint Ventures Group or other employing entity upon providing the employee with entitlements pursuant to applicable Law) and (B) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organizationContract;
(vi) Contracts that relate to the future disposition or acquisition of Equity Interests or material assets or properties by any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which member of the Company is Group or reasonably could be obligated the Non-Controlled Joint Ventures Group, or any future merger or business combination with respect to pay compensation the Company Group or the Non-Controlled Joint Ventures Group (excluding variable compensation) in excess of $100,000 annuallyother than this Agreement or the Ancillary Agreements);
(vii) any Contract that is not otherwise a settlement, conciliationKey Project Document: (A) committing any member of the Company Group or the Non-Controlled Joint Ventures Group to any material future capital expenditures or capital investments, or similar agreement with (B) for the future sale of any Governmental Body material asset or that imposes property or granting a right or option in favor of another Person to purchase any monetary material asset or other material obligations upon the Company to any Governmental Body after the date of this Agreementproperty;
(viii) all joint ventureany Contract the primary purpose of which is to address Taxes (including PILOTs, partnership (involving FILOTs, Tax abatements, tax indemnification Contracts, Tax allocation agreements, Tax sharing of profits) agreements, Tax indemnity agreements or similar Contracts arrangements (and excluding customary Tax indemnification provisions in commercial contracts not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Productsprimarily relating to Taxes));
(ix) any Contract under which with a Governmental Authority (other than any Governmental Body has any material rightssuch Contract that is entered into in the ordinary course of business and is not material);
(Ax) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdictioneach Contract, other than any such covenant set forth in this Agreement Contract that is not otherwise a Key Project Document, pursuant to which (A) Seller or any of its Affiliates, including any member of the Company Group or the agreements ancillary hereto; Non-Controlled Joint Ventures Group, 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, a Project or a member of the Company Group or the Non-Controlled Joint Ventures Group or (B) any Contract in which the Company has granted “exclusivity” third party (for clarity, not including Seller or that requires the Company to deal exclusively withany of its Affiliates) provides or posts any guarantee, indemnity, performance or grant exclusive rights or rights surety bond, letter of first refusal tocredit, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” commitments or other similar term credit support arrangement or provision by which another party to such Contract or any other Person is, or could become, entitled obligation to any benefit, right member of the Company Group or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another PersonNon-Controlled Joint Ventures Group;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services Contracts listed on Schedule 3.21 of the CompanyDisclosure Schedules;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase other than as set forth in the foregoing clauses (i) through (xi), which expressly provides for future payments to or sell assets involving from any one or more members of the Company Group or the Non-Controlled Joint Ventures Group, individually or collectively, in excess of $100,000 1,500,000 individually or more$7,500,000 in the aggregate over the term of such Contract;
(xiii) other than any leaseContract that is not otherwise a Key Project Document, sublease, rental any Contract that imposes a “change of control” or occupancy agreement, license similar restriction that is implicated in connection with the transactions contemplated hereunder (not relating to Intellectual Propertyincluding through the use of the term “Qualified Transferee” or any similar term), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;; and
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) whereby a member of the Company Disclosure ScheduleGroup or the Non-Controlled Joint Ventures Group agrees to enter into any of the foregoing Contracts.
(b) that contains a change in control clause or similar provision that Seller has made available to Buyer true and complete copies of each Material Contract. Except as would be not reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by material to the Company or any successor thereto in excess of $100,000Group and the Non-Controlled Joint Ventures Group, individually or in taken as a whole, each Material Contract is valid and binding on the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) applicable member of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, Group or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) the applicable member of the Company Disclosure ScheduleNon-Controlled Joint Ventures Group, such Material Contract is, to as the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contractcase may be, and, to the Knowledge of Seller, the Companycounterparties thereto, no and is in full force and effect. No member of the Company Group nor the Non-Controlled Joint Ventures Group nor, to the Knowledge of Seller, any of the counterparties thereto is in breach of, or default under (or alleged to be in breach or default), any Material Contract, except for such breaches or defaults that would not reasonably be expected to be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole. No event has occurred which, individually or together with other party events, constitutes a default or breach under or would reasonably be expected to such result in a breach of or a default or termination under any Material Contract is (in violation of any provision, or taken or failed to take any act whicheach case, with or without notice, notice or lapse of time, time or both, would constitute a default under the provisions ) by any member of any Material Contract. Since January 1, 2021, the Company has not received any written notice Group or the Non-Controlled Joint Ventures Group or, to the Knowledge of Seller, give to any other Person any right of acceleration, termination, modification or cancellation under any Material Contract, or result in the Companycreation of any Encumbrance upon any of the assets of any member of the Company Group nor the Non-Controlled Joint Ventures Group, other communication regarding any actual except as would not reasonably be expected to be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole. Except as set forth on Schedule 3.18(b) of the Disclosure Schedules, no member of the Company Group or possible violation the Non-Controlled Joint Ventures Group has received or breach given written notice of an intent to terminate, cancel or otherwise materially modify, amend or alter the terms and conditions of, or notice of force majeure, material breach or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Securities Purchase Agreement (Algonquin Power & Utilities Corp.)
Material Contracts. (aSCHEDULE 4.1(n) Part 2.9(a) and SCHEDULE 9.11 collectively contain a complete and accurate list of all Contracts of one or more of the following categories to which any member of the Company Disclosure Schedule lists Group is a party or by which it or any of the Assets is bound:
(1) each Contract with EECI or any Affiliate of EECI (other than any Company Plan set forth in Part 2.15(a) member of the Company Disclosure ScheduleGroup) that is in effectunder which EECI or any Affiliate of EECI (other than any member of the Company Group) has been providing or causing to be provided since the Report Time, and that has not expired goods, materials, supplies, facilities or been terminated in accordance with its termsservices of any kind to any member of the Company Group;
(2) those Contracts, the gross profits attributable to which have, as of the date of this Agreement Agreement, constituted in the aggregate at least 80% of the gross profits generated by the Pipeline Systems associated with such Contracts for the twelve-month period prior to which the Company is a party Recent Date Balance Sheet;
(3) each Contract existing as of the date of this Agreement, including any indenture, trust agreement, loan agreement, note or by other debt security, under which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) member of the Company Disclosure Schedule, Group has outstanding indebtedness for borrowed money or the “Material Contracts”):
(i) any Contract (deferred purchase price of property or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii4) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any each Contract under which any member of the Company have Group is or will be obligated by virtue of a prepayment arrangement, a "take-or-pay" arrangement, a production payment or any indemnification obligationsother arrangement to transport or deliver hydrocarbons at some future time without then or thereafter receiving full payment therefor, other than or to make payment at some future time for hydrocarbons or the transportation or delivery of hydrocarbons previously purchased or transported;
(5) each Contract by any such member of the Company Group that includes any Capitalized Lease, any agreement of surety or any Debt Guaranty or, except those Contracts entered into in the Ordinary Course ordinary course of Businessbusiness, any Guaranty (other than any Debt Guaranty) or any agreement of indemnification;
(iii6) each Contract that includes any guarantycovenant or agreement of any member of the Company Group, surety which purports to restrict the business activity of any member of the Company Group or performance bond limit the freedom of any such Person to compete with any other Person;
(7) each joint venture, partnership, investment or letter other Contract (A) involving a sharing of credit issued profits or posted, as applicable, by losses relating to all or any portion of the Company; business of any member of the Company Group or (B) requiring any such Person to invest funds in or make loans to, or purchase any securities of, another Person, venture or other business enterprise;
(8) each Contract evidencing or relating giving a third party rights to Debt buy any member of the Company Group's assets, stock or providing for the creation other equity interests with a fair market value in excess of $1,000,000 on a change of control or granting a change in ownership of any Lien upon any of the property or assets member of the Company Group or Holdings LLC;
(excluding Permitted Liens); (C9) any each Contract (1) relating to any loan providing for commissions, fees or advance royalty or other payments by or to any Person based on sales, purchases or profits, other than direct payments for goods, materials, supplies or services;
(10) each licensing or other Contract respecting patents, trademarks, service marks, copyrights or other intellectual property;
(11) other than any Derivative Contract entered into in the ordinary course of business, each Contract (including, but not limited to, ▇▇▇▇▇▇, options, swaps, caps, collars or any other type of Derivative Contract) to which any member of the Company Group is outstanding a party that is designed to protect any party to such Contract against fluctuations in interest rates, currency exchange rates or the prices of commodities and raw materials;
(12) each Contract existing as of the date of this Agreement (other than immaterial advances to employees and consultants for capital expenditures, including maintenance expenses that should be capitalized in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencyaccordance with GAAP, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually1,000,000 and all such Contracts which, in the aggregate, relate to such expenditures in excess of $10,000,000;
(vii13) any each Contract that is relating to or providing for the creation of a settlement, conciliationsecurity interest in, or similar agreement with any Governmental Body or that imposes any monetary the mortgaging of, pledging of or other material obligations upon the Company encumbrance to secure payment of borrowed money or any Governmental Body after the date deferred purchase price of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods property or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal toon, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property AgreementsAssets; and
(xv14) other than the New Services Agreement, any management service, consulting or other similar type Contract (excluding that commits any Contract disclosed in Part 2.14(f) member of the Company Disclosure Schedule) Group to pay aggregate fees or other compensation of more than $500,000 in any calendar year. True copies of all such Material Contracts that contains a change in control clause or similar provision that would be reasonably be expected are written, have been made available to be triggered in connection with MLP and the consummation MLP has been advised of the Contemplated Transactions and would result in payments by the Company or material terms of any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company oral Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesContracts. Except for breaches, violations or defaults which have as would not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company is Material Contracts have been amended, modified or supplemented except as set forth in SCHEDULE 4.1(n) or SCHEDULE 9.11. Except as set forth in SCHEDULE 4.1(n) and as could not reasonably be expected to have a Material Adverse Effect, in violation the case of 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, any each Material Contract, and, to the Knowledge no member of the CompanyCompany Group (A) has received any prepayment, no other party to such Material Contract is advance payment or deposit thereunder, (B) except as may be agreed in violation of any provisionconnection with the KPC Agreed Settlement, (C) has granted a discount from the stated contract price for its sales or services thereunder from and after the Effective Time, or taken (D) has any refund or failed to take any act whichrepayment obligation thereunder, with respect to any goods or without noticecapacity purchased, lapse of timesold, leased, transported, stored or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual handled by or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)on its behalf.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms2.10 hereto sets forth, as of the date of this Agreement Agreement, a list of all of the following contracts and agreements for the Company (except for those which will be terminated at or prior to the Closing or are terminable by notice of not more than 60 days without material liability to the Company):
(a) contracts or leases with respect to which the Company is has a party stated obligation of more than $250,000 within the 12-month period from and after the date of this Agreement, other than purchase orders entered into in the ordinary course of business;
(b) contracts or by leases with respect to which the Company reasonably anticipates will, in accordance with its terms, involve aggregate payments to the Company of more than $250,000 within the 12-month period following the date of such contract or lease or $1,000,000 over the life of such contract or lease;
(c) contracts relating to the borrowing of money, or the guaranty of any obligation for the borrowing of its properties or assets are otherwise bound money except those which will terminate as of the following categories Closing;
(such Contracts required to be disclosed under Part 2.9(ad) agreements with any non-solicitation, non-compete, exclusivity or “most favored nation” provision that restricts in any material respect the ability of the Company Disclosure Scheduleto compete in any line of business or with any Person or in any geographic area or during any period of time or that limits in any material respect the ability of the Company to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any asset or which would so limit the “Material Contracts”):freedom of the Company after the Closing Date;
(ie) any Contract (or group of related Contracts), other than a Company Plan, employment agreements that requires future provide for base salary payments by the Company in excess of $100,000 per annum;
(f) contracts with any labor union or association relating to current employees of the Company, or collective bargaining agreements;
(g) contracts with any Affiliate of the Company involving payments to or from the Company in excess of $50,000 in the last twelve (12) completed months prior to the date hereof or which are otherwise material to the Business;
(h) material supply, distribution or reseller agreements involving payments to or from the Company in excess of $100,000 in any calendar year, including any such Contract the last twelve (or group of such Contracts that are related12) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case completed months prior to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticedate hereof;
(iii) material research and development agreements;
(j) contracts with Governmental Authorities;
(k) partnership and joint venture agreements;
(l) contracts with respect to mergers and acquisitions or sales of securities by the Company;
(m) contracts or agreements that restrict or condition the payment of any dividends or distributions, the making (or repayment) of any intercompany loans, the transfer of any assets to or from any Affiliate of the Company, or the incurrence of any debt or liens except those which shall terminate as of the Closing;
(i) any Contract relating to the acquisition consulting contract or disposition agreement (including any foreign consultant agreement), or any agency, dealer, sales representative or other similar contract that provides for payments by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
per annum or (viiii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement contract or agreement under which the Company is the lessee has agreed to indemnify any current or lessor offormer directors, officers, employees or owns, uses or operates any leasehold or other interest in any real or personal propertyconsultants;
(xiv) the Company Intellectual Property Agreements; and
(xvo) any Contract (excluding any Contract disclosed contract or agreement relating to the sale or purchase, other than in Part 2.14(f) the ordinary course of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments business, by the Company of any properties, assets or any successor thereto business operations for a price in excess of $100,000;
(p) any contract or agreement under which the Company has directly or indirectly made any advance, individually loan, extension of credit or capital contribution to, or other investment in, any Person in excess of $100,000 (other than extensions of credit to customers in the aggregate; andordinary course of business or advances to employees in the ordinary course of business consistent with past practice);
(xviq) any Contract not otherwise listed currency or required to be listed in Part 2.9(a) interest rate swap, collar or hedge contract or agreement except as will terminate as of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.Closing; or
(br) With respect any other contract or agreement, written or oral, that is material to each the Company or the Business which is not covered by any of the preceding clauses. All of the foregoing contracts and the Leases are sometimes collectively referred to herein as the “Material Contracts”. The Company has Made Available to the Buyer true and correct copies of all Material Contracts. Each Material Contract listed in Part 2.9(a) of the Company Disclosure Scheduleis a legal, such Material Contract is, to the Knowledge of the Company, valid and binding and enforceable against on the Company and, to the Knowledge knowledge of the Company, against each party thereto on the other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadparties thereto, and would reasonably be expected to have, individually or is in the aggregate, a full force and effect. The Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge knowledge of the Company, each other party thereto has performed its obligations (and is not in default) under each Material Contract in all material respects. To the knowledge of the Company, no other third party to such Material Contract is in violation of any provision, 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 any material provision of any Material Contract. Since January 1, 2021Except as set forth on Schedule 2.5, the Company has Transactions will not received afford any written notice or, other party to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any a Material Contract by the Company. The Company has made available right to Parent true and complete copies of each terminate such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 4.12(a) of the Company Disclosure Schedule lists sets forth a true and complete list of, and the Company has made available to Purchaser true and complete copies of, each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following Contracts to which the Company or any Subsidiary is a party or by which (each a “Material Contract”) and neither the Company nor any of its properties Subsidiaries has entered into any other agreement, oral or assets are otherwise bound written, the purpose or the effect of the following categories (such Contracts required which would be identical or similar to be those listed below and which is not disclosed under Part 2.9(ain Section 4.12(a) of the Company Disclosure Schedule, the “Material Contracts”)::
(i) any Contract (Contracts that were not entered into in the ordinary course of business or group of related Contracts), other than a Company Plan, that requires future payments by or pursuant to which the Company or any Subsidiary is obligated to pay amounts in excess of $US$100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticetwelve-month period;
(ii) any Contract relating to the acquisition or disposition Contracts that provide for performance of services by the Company or any of its Subsidiaries of an amount or value in excess of US$100,000 in any operating business or assets (other than pursuant to nontwelve-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businessmonth period;
(iii) partnership or joint-venture Contracts or any guaranty, surety other similar arrangement that involves a sharing of profits or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (revenue with other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractPersons;
(iv) any Contract creating loan agreements, indentures, letters of credit, mortgages, security agreements, pledge agreements, deeds of trust, bonds, notes, guarantees and other agreements and instruments relating to the borrowing of money or purporting obtaining of or extension of credit pursuant to create any partnership, alliance or joint venture which the Company or any sharing of profits its Subsidiaries is an obligor or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)guarantor;
(v) any collective bargaining agreement or similar Contract with any trade union, works council license or other labor organizationContracts relating to Intellectual Property licensed, disclosed, or otherwise made available by any Person to the Company or any or its Subsidiaries (“Inbound License Agreements”), any license or other Contracts relating to Intellectual Property licensed, disclosed or otherwise made available by Company or any of its Subsidiaries to any Person (“Outbound License Agreements”) or any other Contract limiting or restricting the use by Company or its Subsidiaries of any Intellectual Property Rights;
(vi) Contracts for the employment of any offer letterindividual on a full-time, employment agreementpart-time, independent contractor agreement consulting or other Contract basis providing annual compensation in excess of US$100,000 or providing severance benefits in excess of those provided by Requirements of Law or by any collective agreement applicable to such individual;
(vii) collective bargaining agreements (conventions collectives) that are applicable to employees of the Company or its Subsidiaries;
(viii) any profit-sharing, stock option, stock purchase, stock appreciation, deferred compensation other than quarterly bonuses and commissions, severance or other material plan or arrangement for the benefit of the Company’s or Subsidiaries’ current or former directors, officers or employees;
(ix) Contracts relating to the lease of real property used or operated by the Company or its Subsidiaries;
(x) Contracts entered into with any current director, officer (mandataire social) or Key Executive of the Company Service Provider or a Subsidiary or with any Affiliate of a Seller (other than the Company and its Subsidiaries);
(xi) Contracts that contain any exclusivity provision or a provision or covenant materially prohibiting, impairing, limiting or restricting, or purporting to materially prohibit, impair, limit or restrict, the ability of the Company or any of its Subsidiaries to (i) sell or license any products or services to any other person in any material respect (other than ordinary restrictions in Intellectual Property license agreements), (ii) engage in any line of business, or (iii) compete with or obtain products or services from any person or limiting the ability of any person to provide products or services to the Company or any of its Subsidiaries;
(xii) Contracts which are material to the conduct of the business and operations of the Company and its Subsidiaries taken as a whole (as such business and operations are currently conducted) and which cannot be terminated, either at all or without payment of a fee in excess of US$50,000, by the Company or its Subsidiaries, as the case may be, with less than six (6) months advance notice;
(xiii) Contracts under which the consequence of a default or termination would be material to the business, financial condition, assets, operations or results of operations of the Company and its Subsidiaries taken as a whole;
(xiv) Contracts pursuant to which the Company or any of its Subsidiaries has any continuing indemnity or similar obligations or undertakings to any third parties in respect of the sale of any company or other entity or business, or pursuant to which the Company or any of its Subsidiaries is the beneficiary of any continuing indemnity or reasonably could be obligated to pay compensation (excluding variable compensation) similar obligations or undertakings from any third parties in excess respect of $100,000 annuallythe acquisition of any entity or business;
(viixv) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company Contracts pursuant to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company or a Subsidiary has granted “exclusivity” a power of attorney or that requires similar authority or has obligations or liabilities as guarantor, surety, co-signer, endorser or otherwise in respect of the Company to deal exclusively with, or grant exclusive rights or rights obligations of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xixvi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to Contracts under which the provision or resale of goods or services consummation of the CompanyTransactions would constitute a breach or a default or an event of acceleration or would give the other contracting party the right to terminate, accelerate, renegotiate or amend such contracts;
(xiixvii) any Contract involving commitments all non-disclosure or confidentiality agreements (other than standard confidentiality agreements or provisions set forth in Contracts entered into the ordinary course of business or in Material Contracts disclosed pursuant to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Propertythis Section 4.12(a), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements); and
(xvxviii) each written amendment, supplement, and modification with respect to any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectforegoing.
(b) With respect to each Each Material Contract listed is in Part 2.9(afull force and effect and (except as expressly contemplated herein) will be in full force and effect on identical terms immediately upon the consummation of the Transactions. Neither the Company Disclosure Schedulenor any of its Subsidiaries, such Material Contract isor, to the Knowledge of Company Managers, any other party thereto, is in breach of or default under any Material Contract, and no event has occurred and no condition exists which, with the Companylapse of time, binding and enforceable against the giving of notice, or both, would become a breach or default or permit termination, modification or acceleration under any Material Contract. Neither the Company nor any of its Subsidiaries has since January 1, 2014 released or waived any material right or benefit under any Material Contract. No obligation that remains under any Contract cannot be fulfilled by the Company or its Subsidiaries and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the CompanyManagers, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available intends to Parent true and complete copies of each cancel, terminate, or refuse such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 5.11(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) all of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsfollowing Contracts to which, as of the date of this Agreement to which hereof, the Company or any of its Subsidiaries is a party or by which it or any of its properties or assets are otherwise may be bound of the following categories or affected (such together with all Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedulereferenced in Section 5.13(a), the “Material Contracts”):): Table of Contents
(i) all consulting Contracts involving payments in excess of $500,000 per annum;
(ii) union or collective bargaining Contracts;
(iii) instruments for borrowed money (including, without limitation, any Contract indentures, guarantees, loan agreements, sale and leaseback agreements, or purchase money obligations incurred in connection with the acquisition of property);
(iv) Contracts for acquisitions or group dispositions (by merger, purchase or sale of related assets or stock or otherwise) of material assets, as to which the Company or any of its Subsidiaries has continuing obligations or rights;
(v) joint venture or partnership Contracts), licensing arrangements, contracts for sharing of profits;
(vi) purchase Contracts giving rise to Liabilities of the Company or any of its Subsidiaries in excess of $500,000 (other than a Company Planpurchase orders and Contracts for procurement of materials in the ordinary course of business consistent with past practice);
(vii) guarantees, that requires future suretyships, indemnification, contribution agreements, mortgages, pledges, hypothecations, deeds of trust, conditional sale or title retention agreements, security agreements, equipment financing obligations or guaranties, or other sources of contingent liability in respect of any Indebtedness or obligations to any other Person, or letters of intent or commitment letters with respect to same;
(viii) all Contracts providing for payments by or to the Company or any of its Subsidiaries in excess of $100,000 250,000 in any calendar year, including any such Contract (fiscal year or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into $500,000 in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by aggregate during the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)term thereof;
(ix) all Contracts obligating the Company or any Contract under which any Governmental Body has any material rightsof its Subsidiaries to provide or obtain products or services for a period of one year or more;
(Ax) any Contract all Contracts containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting limit the Company, or, after the Closing, Parent ’s or the Surviving Entity from engaging any of its Subsidiaries’ freedom to engage in any line of business (other than Contracts related to Indebtedness), to compete with any Person or activity in any geographic area or other jurisdiction, other than to solicit any such covenant set forth in this Agreement Person with respect to the sale or the agreements ancillary hereto; (B) any Contract in which purchase of goods or services or their employment with the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personits Subsidiaries;
(xi) all Contracts for construction or the purchase of real estate, improvements, equipment, machinery and other items which under GAAP constitute capital expenditures and which involve or are reasonably expected to involve expenditures in excess of $500,000 during any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services fiscal year of the Company;; and Table of Contents
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest all agreements governing payments made in any lieu of real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectestate taxes.
(b) With respect The Company has heretofore delivered to Purchaser true, accurate and complete copies of each Material Contract listed in Part 2.9(a) (or written summaries of each oral Material Contract). All such Material Contracts are, and as of the Closing Date, except as permitted under Section 6.01, will be, valid, binding and in full force and effect against the Company Disclosure Scheduleand/or its Subsidiaries, such Material Contract isas applicable, and to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each other party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadthereto, and would reasonably be expected to have, individually no material breach or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision ofdefault, or taken or failed to take any act event which, with notice or without notice, lapse of time, time or both, would constitute a any such material breach or default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, by the Company has not received or any written notice of its Subsidiaries (or, to the Knowledge of the Company, by any other communication regarding party thereto), exists with respect thereto. Neither the Company nor any actual of its Subsidiaries has received any notice of cancellation or possible violation or breach non-renewal of, or default underany significant dispute with respect to, any such Material Contract Contract. All Contracts entered into after the date hereof that would have been Material Contracts had they been in effect on the date hereof will be, as of the Closing Date, except as permitted under Section 6.01, valid, binding and in full force and effect against the Company and/or its Subsidiaries, as applicable, and to the Knowledge of the Company, each other party thereto, and no material breach or default, or event which, with notice or lapse of time or both, would constitute any such material breach or default by the Company or any of its Subsidiaries (or, to the Knowledge of the Company. The Company has made available to Parent true and complete copies , by any other party thereto), will, as of each the Closing Date, exist with respect thereto, nor will there be any cancellation or non-renewal of any such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Contracts.
Appears in 1 contract
Material Contracts. 138052556_15
3.13.1. Schedule 3.13.1 sets forth a list of all Contracts of the types described below that are in effect on the date hereof (each of the following, collectively with each Lease, and the Retention Agreement, a “Material Contract”):
(a) Part 2.9(aall Contracts (other than purchase orders received in the ordinary course of business) or binding options to sell or lease (as lessor) any property of an Acquired Company for an amount in excess of $100,000 over any one-year period;
(b) all Contracts (other than purchase orders entered into in the ordinary course of business) pursuant to which an Acquired Company has agreed to acquire or lease any property for an amount in excess of $100,000 over any one-year period;
(c) all Contracts pursuant to which an Acquired Company has an existing obligation to pay any amounts in respect of indemnification obligations, purchase price adjustments, or otherwise, in connection with any merger, consolidation or other business combination or any acquisition or disposition of a business;
(d) all Contracts relating to Indebtedness under clauses (a), (b), (c) or (d) of the Company Disclosure Schedule lists each Contract (other than definition of Indebtedness, including the borrowing of money or mortgaging, pledging or otherwise placing a Lien on any Company Plan set forth in Part 2.15(a) material portion of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as assets of the date Acquired Companies and any agreements related to letter of this Agreement credit arrangements or performance bonds;
(e) all Contracts relating to any material business acquisition or disposition of any business by an Acquired Company entered into since January 1, 2015 (whether by merger, consolidation or other business combination, sale of securities, sale of assets or other similar transaction);
(f) all Contracts with any Governmental Authorities;
(g) all Contracts that contain a right of first refusal, first offer or first negotiation or a “most favored nation” or “most favored pricing” provision;
(h) all partnership or joint venture agreements or to which the an Acquired Company is a party or agreements relating to any Investment by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):an Acquired Company;
(i) (A) all agreements for the employment of any current officer or individual employee with annual base compensation in excess of $100,000 (other than (x) agreements providing for at-will employment that do not provide for notice pay, severance or post-employment benefits and (y) offer letters) or (B) all agreements providing for severance, or relating to loans, to any current employee, officer, manager, director or other individual service provider;
(j) all Contracts with a Key Customer or Key Supplier;
(k) all Contracts obligating any Acquired Company to make contingent payments of any type that are material in amount, whether or not such obligation has matured, which would be reasonably likely to become due and payable;
(l) all Contracts providing for capital expenditures with an outstanding amount of unpaid obligations or commitments in excess of, or reasonably expected to be in excess of, $50,000 for any one capital expenditure or $100,000 in the aggregate;
(m) all contracts, a principal purpose of which is the sharing or allocation of or indemnification for Taxes;
(n) all collective bargaining Contracts with a labor union; 138052556_15
(o) all Contracts that contain a covenant by an Acquired Company not to compete in any line of business with any Person or otherwise limiting the right of an Acquired Company to freely engage in any business, including any contracts containing any requirements provisions or exclusivity provisions or any Contract providing for the non-solicitation of employees, contractors, suppliers or customers of a Person;
(p) each material (i) Inbound License (except for non-exclusive licenses obtained by any of the Acquired Companies to download, use or group of related Contracts)access commercially available, other than a Company Plan, off-the-shelf object code software or software-as-a-service that requires future payments (1) is not modified or distributed by or for any of the Acquired Companies, and (2) does not involve aggregate payments in excess of $50,000 to any vendor for all license, maintenance, support, subscription and other fees); (ii) Outbound License (including any exclusive Outbound License) (except for non-exclusive licenses for object code software provided to purchasers of Offerings in the ordinary course of business); (iii) Intellectual Property Agreement that is not an Inbound License or an Outbound License including all Contracts (including settlement agreements, co-existence agreements, and consent agreements) pursuant to which any Acquired Company is restricted from using, registering, or enforcing its Intellectual Property in any material respect; and
(q) all other Contracts that are reasonably expected to involve payments to or from an Acquired Company in excess of $100,000 in any calendar year, including any such Contract (2023 or group of such Contracts 2024 or that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case otherwise material to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding Acquired Companies, taken as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectwhole.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSet forth in Section 3.18(a) of the Company Disclosure Schedule lists each Contract and/or the Company's SEC Filings, is a list of all contracts and agreements (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement 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 its assets or properties are bound that are material to the business, assets or assets are otherwise bound properties of the Company and its Subsidiaries taken as a whole, including, to the extent any of the following categories are, individually or in the aggregate, material to the business, assets or properties of the Company and its Subsidiaries taken as a whole, all: (i) employment, severance, product design or development, personal services, consulting, non-competition or indemnification contracts (including, any contract to which the Company or any of its Subsidiaries is a party involving employees of the Company), but excluding normal indemnification provisions under license or sale contracts; (ii) licensing, merchandising or distribution agreements involving the payment of more than $50,000 per year; (iii) contracts granting a right of first refusal or first negotiation involving in excess of $50,000; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material assets or properties of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2003; (vi) contracts or agreements with any Governmental Entity involving the payment of more than $50,000 per year; (vii) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any such agreement pursuant to which indebtedness for borrowed money may be incurred, in each case involving in excess of $50,000; (viii) agreements that purport to limit, curtail or restrict the ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business; (ix) assembly (packaging), testing, or supply agreements, in each case, involving in excess of $50,000; and (x) commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 5.1, the "Company Material Contracts"). Section 3.18 of the Company Disclosure Schedule sets forth a list of all Company Material Contracts required and the Company has heretofore made available to be disclosed Parent true, correct, and complete copies of all such Company Material Contracts.
(b) To the Company's Knowledge, each of the Company Material Contracts constitutes the valid and legally binding obligation of the Company or its Subsidiaries, enforceable in accordance with its terms, and is in full force and effect. There is no material default under Part 2.9(aany Company Material Contract either by the Company (or its Subsidiaries) or, to the Company's Knowledge, by any other party thereto, and no event has occurred that with the giving of notice, the lapse of time, or both would constitute a default thereunder by the Company (or its Subsidiaries) or, to the Company's Knowledge, any other party. As of the date hereof, no party has notified the Company in writing that it intends to terminate or fail to extend its contract with the Company within one year of the date of the Agreement, except for any such termination or failure as would not have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole.
(c) No party to any such Company Material Contract has given notice to the Company of or made a claim against the Company in respect of any material breach or default thereunder.
(d) Except as set forth in Section 3.18(d) of the Company Disclosure Schedule, no consent of any third party is required under any Company Material Contract as a result of or in connection with, and the “enforceability of any Company Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 will not be affected in any calendar yearmanner by, including any such Contract (or group the execution, delivery, and performance of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effecttransactions contemplated hereby.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSchedule 4.9(a) contains a true, complete and accurate list of the Company Disclosure Schedule lists each Contract following written or oral leases, agreements, indentures, notes, bonds, loans, licenses, instruments, commitments, plans, arrangements, or other contracts (other than any Company Plan set forth in Part 2.15(a“Contracts”) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company or any of its Subsidiaries is a party to or by which any of its properties bound by, including all modifications, amendments or assets are otherwise bound of the following categories extensions (such Contracts required listed or described on Schedule 4.9(a) being collectively referred to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, as the “Material Contracts”):), other than any Employee Benefit Plans or Leases:
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products collective bargaining agreement or other personal property, material agreement with any labor union or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeother labor organization;
(ii) any Contract relating to for capital expenditures or the acquisition or disposition by the Company construction of any operating business or fixed assets requiring aggregate future payments in excess of $250,000;
(other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (Biii) any Contract relating to the acquisition or disposition by the Company of any operating corporation, partnership, limited liability company or other Person or any business enterprise or division thereof (including by merger, consolidation or acquisition, in whole or in part, of equity or other ownership interests or assets), in each case, which acquisition or divestiture was consummated on or after January 1, 2015 or under which any party thereto has any remaining liabilities or obligations;
(iv) any Contract for the purchase or sale of inventory, materials, supplies, merchandise, machinery, equipment, parts or other property or assets requiring aggregate future payments in excess of $250,000, excluding purchase orders entered into or issued in the ordinary course of business;
(v) any Contract relating to Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(vi) any Contract (A) granting any Person a Lien (other than pursuant to non-exclusive licenses Permitted Liens or grants Liens that will be released at Closing) on all or any part of non-exclusive rights) under which the assets of the Company has or any executory covenants of its Subsidiaries or indemnification (B) related to the sale, lease, conveyance, investment, loan or other obligations disposition of material assets of the Company or rights any of its Subsidiaries, other than sale of inventory in the ordinary course of business;
(including put vii) any Contract relating to the purchase, sale or call options); disposal of any equity interest or other securities of the Company or any of its Subsidiaries other than in connection with intercompany restructurings implemented for tax purposes;
(Cviii) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property its Subsidiaries is (A) a lessee or assets sublessee of the Company any machinery, equipment, vehicle (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Businessincluding fleet equipment) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; tangible personal property or (B) a lessor of any Contract that provides for “earn-outs” or other contingent tangible personal property, in each case requiring aggregate future payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)250,000;
(ix) any Contract under (A) restricting or prohibiting the Company or any of its Subsidiaries from competing, entering into or engaging in any line of business, in any geographic area, during any period of time or in any market segment, or with any Person, or (B) which limits or restricts the ability of the Company or any Governmental Body has of its Subsidiaries to solicit or hire any material rightsPerson;
(Ax) any Contract containing covenants restricting relating to the formation, creation, operation, management or purporting to restrict competition whichcontrol of, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in ownership of or investment in, any business or activity in enterprise, including any geographic area joint venture, strategic alliance, partnership, limited liability company or other jurisdiction, other than any such covenant set forth in this Agreement similar entity which involves the sharing of profits or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively withlosses, or grant exclusive rights relates to the ownership of, or rights of first refusal toinvestment in, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor under which (A) any Person has directly or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services indirectly guaranteed any liabilities of the CompanyCompany or any Subsidiary or (B) the Company or any Subsidiary has directly or indirectly guaranteed liabilities of any other Person (in each case other than endorsements for the purposes of collection in the ordinary course of business);
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving with any Governmental Authority providing for aggregate future payments in excess of $100,000 or more1,000,000 per annum;
(xiii) any leaseContract (A) providing for the employment of any individual employee on a full time or part time basis, sublease(B) providing for the engagement of any Person on consulting basis, rental (C) providing for the payment of any cash or occupancy agreementother compensation or benefits to any Person upon the sale of the Company, license or (not relating to Intellectual Property), installment, and conditional sale agreement D) prohibiting any Person from competing with or agreement under which disclosing trade secrets or confidential information of the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertyof its Subsidiaries;
(xiv) any Contract with any current or former officer, manager, director or Affiliate of Seller, the Company Intellectual Property Agreements; andor any of its Subsidiaries;
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause settlement, conciliation or similar provision agreement that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by is currently binding on the Company or any successor thereto in excess of $100,000, individually or in the aggregate; andits Subsidiaries;
(xvi) any Contract not with any Material Customer or Material Supplier;
(xvii) any Contract or series of related Contracts that the Company or any of its Subsidiaries reasonably anticipates involves aggregate payments to the Company or any Subsidiary in excess of $1,000,000 per annum, excluding purchase orders entered into or issued in the ordinary course of business;
(xviii) any Contract or series of related Contracts that either the Company or any of its Subsidiaries reasonably anticipates involves aggregate payments from the Company or any Subsidiary in excess of $1,000,000 per annum, excluding purchase orders entered into or issued in the ordinary course of business;
(xix) any material Contract (A) imposing “most favored nation” pricing terms or (B) granting any exclusive rights, right of first refusal, rights of first negotiation or similar rights to any Person; and
(xx) any Contract under which the Company or any of its Subsidiaries is a licensee or licensor of, or otherwise listed receives from or required grants to be listed in Part 2.9(a) any Person, any rights under Intellectual Property (other than non-exclusive end user licenses of commercially-available software solely for the Company’s internal use (“Off-the-Shelf Software License”)), or any Contract otherwise affecting the ability of the Company Disclosure Schedule (including Company or any of its Subsidiaries to use, enforce, assign, transfer, license, or grant any other rights under, any Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectproviding for any indemnification relating to Intellectual Property.
(b) With respect The Company has made available to Buyer true and correct copies of each written Material Contract each of which is complete in all material respects, including each material amendment and other material modification thereto. Schedule 4.9(a) provides a true, complete and correct description of the material terms of any oral Material Contract. Except as set forth on Schedule 4.9(b), each Material Contract listed in Part 2.9(a) is a valid and binding obligation of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company or its Subsidiaries and, to the Knowledge Company’s Knowledge, of the Companyeach other party thereto, against each party thereto other than the Company, enforceable in accordance with its terms, subject only to (Ai) Laws of general application relating to bankruptcy, insolvency insolvency, reorganization, moratorium, fraudulent conveyance and other Laws affecting the relief rights of debtors creditors generally and (Bii) rules principles of Law governing specific performanceequity, injunctive relief and other equitable remedieswhether considered at law or in equity. Except for breachesas set forth on Schedule 4.9(b), violations the Company and its Subsidiaries have performed all material obligations required to be performed by them prior to the date hereof under the Material Contracts and are not in material breach or defaults which have not had, and would reasonably be expected to havedefault thereunder nor has any event occurred which, individually or in the aggregate, with or without the giving of notice or the passage of time or both, would constitute a material breach or default, other than for Material Contracts for which a Company Material Adverse EffectRequired Consent has not been obtained. To the Company’s Knowledge, no event has occurred, that, individually or in the Company is not in violation of any provision of, or taken or failed to take any act whichaggregate, with or without notice, notice or lapse of time, or both, will, or would constitute reasonably be expected to, (w) result in a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation or breach of any provision, 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 any Material Contract. Since January 1, 2021(x) give any Person the right to declare a default or exercise any remedy under any Material Contract, (y) give any Person the Company has not received any written notice or, right to accelerate the Knowledge maturity or performance of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by or (z) give any Person the Company. The Company has made available right to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a cancel or terminate for cause any Material Contract).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Infrastructure & Energy Alternatives, Inc.)
Material Contracts. (a) Part 2.9(aExcept as disclosed in Section 3.16(a) of the Company Seller Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Memorandum, none of the Company Disclosure Schedule) that is in effectSeller Entities, and that has not expired nor any of their respective Assets, businesses, or been terminated in accordance with its termsoperations, as of the date of this Agreement to which the Company is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleaffected by, the “Material Contracts”):
or receives benefits under, (i) any Contract (or group of related Contracts)employment, other than a Company Planbonus, that requires future payments by or to the Company in excess of $100,000 in any calendar yearseverance, including any such Contract (or group of such Contracts that are related) for the purchasetermination, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal propertyconsulting, or for the provision or receipt of servicesretirement Contract, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition borrowing of money by any Seller Entity or disposition the guarantee by the Company any Seller Entity of any operating business or assets such obligation (other than pursuant Contracts evidencing the creation of deposit liabilities, purchases of federal funds, advances from the Federal Reserve or Federal Home Loan Bank, entry into repurchase agreements fully secured by U.S. government securities or U.S. government agency securities, advances of depository institution Subsidiaries incurred in the ordinary course of Seller’s business, and trade payables and Contracts relating to nonborrowings or guarantees made in the ordinary course of Seller’s business), (iii) any Contract which prohibits or restricts any Seller Entity or any personnel of a Seller Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with vendors or customers or “shrink-exclusive licenses or grants of non-exclusive rightswrap” software licenses); , (Bv) any Contract relating to the acquisition provision of data processing, network communication, or disposition other technical services to or by any Seller Entity, (vi) any Contract relating to the Company purchase or sale of any operating business goods or assets services (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course ordinary course of Business;
business and on an annual basis involving payments under any individual Contract or series of contracts not in excess of $50,000 on an annual basis), (iiivii) any guarantyexchange-traded or over-the-counter swap, surety forward, future, option, cap, floor, or performance bond collar financial Contract, or letter of credit issued any other interest rate or postedforeign currency protection Contract or any Contract that is a combination thereof not included on its balance sheet, as applicable, by the Company; and (Bviii) any other Contract evidencing or relating that would be required to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating be filed as an exhibit to any loan or advance to any Person which is outstanding a Form 10-K filed by Seller as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or pursuant to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a reporting requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
Exchange Act (xii) any Contract involving commitments together with all Contracts referred to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Propertyin Sections 3.11 and 3.15(a), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect“Seller Contracts” ).
(b) With respect to each Material Seller Contract listed and except as disclosed in Part 2.9(aSection 3.16(b) of the Company Seller Disclosure Schedule, Memorandum: (i) the Contract is in full force and effect; (ii) no Seller Entity is in Default thereunder; (iii) no Seller Entity has repudiated or waived any material provision of any such Material Contract; (iv) no other party to any such Contract is, to Seller’s Knowledge, in Default in any respect or has repudiated or waived any material provision thereunder; and (v) no consent which has not been or will not be obtained is required by a Contract for the Knowledge execution, delivery, or performance of this Agreement, the consummation of the Company, binding and enforceable against Merger or the Company and, to the Knowledge other transactions contemplated hereby. Section 3.16(b) of the Company, against each party thereto other than Seller Disclosure Memorandum lists every consent required by any Contract. All of the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation indebtedness of any provision ofSeller Entity for money borrowed is prepayable at any time by such Seller Entity without penalty, premium or taken or failed to take any act whichcharge, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge except as specified in Section 3.16(b) of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Seller Disclosure Memorandum.
Appears in 1 contract
Sources: Merger Agreement (Georgia-Carolina Bancshares, Inc)
Material Contracts. (a) Part 2.9(aAll Contracts required to be filed as exhibits to the Company SEC Documents have been so filed in a timely manner. Section 3.16(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, a true and that has not expired or been terminated in accordance with its termscomplete list, as of the date hereof, of this Agreement each of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its properties Subsidiaries or any of their assets or businesses are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleand any material amendments, the “Material Contracts”supplements and modifications thereto):
(i) any Contract that is a “material contract” (or group as such term is defined in Item 601(b)(10) of related ContractsRegulation S-K of the Exchange Act), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to that materially limits the acquisition or disposition by ability of the Company or any of its Subsidiaries to compete or provide services in any operating line of business or assets (other than pursuant to non-exclusive licenses with any Person or grants of non-exclusive rights); (B) in any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businessgeographic area;
(iii) any guaranty, surety or performance bond or letter Contract required to be disclosed pursuant to Item 404 of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt Regulation S-K of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractExchange Act;
(iv) any Contract creating or purporting series of related Contracts (A) relating to create any partnership, alliance indebtedness for borrowed money (i) in excess of $10 million or joint venture (ii) that becomes due and payable as a result of the Transactions or any sharing of profits or losses (B) constituting a guarantee by the Company with or any Third Party; of its Subsidiaries of the obligations of any other Person (other than a wholly-owned Subsidiary of the Company) for borrowed money;
(v) any license, including any sublicense, or other Contract (A) granting to the Company any rights to use or otherwise exploit any Company Material Intellectual Property owned by a third party, or granting to a third party any rights to use or otherwise exploit any Company Material Intellectual Property owned by the Company , or (B) restricting or otherwise limiting the Company from enforcing, owning, registering, using, or otherwise exploiting any Company Material Intellectual Property, including to the extent applicable, agreements containing covenants not to ▇▇▇, settlement agreements, and coexistence agreements, with the exception, in each case, of shrink-wrap, click-wrap, and off-the-shelf software licenses, and any other similar license of software that is commercially available to the public generally, in each case with one-time or aggregate annual license, maintenance, support and/or other fees of $50,000 or less;
(vi) any Contract that provides for any material “earn-outsmost favored nation” provision or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant equivalent preferential pricing terms to which the Company or any of its Subsidiaries is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallysubject;
(vii) any Contract that is a settlementwith the Company’s top ten (10) suppliers (including purchasing agreements, conciliationgroup purchasing agreements, or and excluding any Contract described by clauses (viii) and (ix) below and excluding work orders, statements of work, purchase orders and similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon contracts) (measured by dollar volume of purchases of the Company to any Governmental Body after during the date of this Agreementtwelve (12) months ended June 30, 2016);
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party Contract with the Company that are based on sales Company’s the top ten (10) customers (excluding any Contract described by clause (vii) above or clause (ix) below and excluding work orders, statements of goods or services other than Company Productswork, purchase orders and similar contracts) (measured by volume of spending by the customer during the twelve (12) months ended June 30, 2016);
(ix) any Contract under which between the Company or any of its Subsidiaries, on the one hand, and any Governmental Body has Entity, on the other hand, involving the purchase or sale of goods or the provision of services for the benefit of, or by, any material rightsGovernmental Entity;
(Ax) any Contract containing covenants restricting purchase, sale or purporting to restrict competition whichsupply contract that contains minimum volume requirements or commitments, in either case, have, would have exclusive or purport to have the effect of prohibiting the Company, or, after the Closing, Parent preferred purchasing arrangements or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other promotional requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the CompanyCompany Lease Agreements;
(xii) any Contract involving commitments to make capital expenditures acquisition or to Contractdivestiture agreement entered into since January 1, 2013 with a purchase price in excess of $5 million or sell assets involving $100,000 that contains “earn-out” provisions or moreother contingent payment obligations;
(xiii) any leaseContract that grants any rights of first refusal or rights of first offer to any Person with respect to the sale, sublease, rental transfer or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement other disposition of any business or agreement under which line of business or material assets or properties of the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;of its Subsidiaries; or
(xiv) the Company Intellectual Property Agreements; andany Contract for any joint venture, partnership or similar arrangement.
(xvb) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that Except as has not had and would be not reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the have a Company or any successor thereto in excess of $100,000Material Adverse Effect, individually or in the aggregate; and
(xvii) any each Contract not otherwise listed set forth or required to be listed set forth in Part 2.9(aSection 3.16(a) of the Company Disclosure Schedule or filed or required to be filed as an exhibit to the Company SEC Documents (including Company Intellectual Property Agreements) thateach, if terminated, or if such Contract expired without being renewed, would have a “Company Material Adverse Effect.
(bContract”, and collectively, the “Company Material Contracts”) With respect to each Material Contract listed in Part 2.9(a) of is valid and binding on the Company Disclosure Schedule, such Material Contract is, to or the Knowledge of the Company, binding and enforceable against the Company applicable Subsidiary and, to the Knowledge of the Company, against each other party thereto other than thereto, and is in full force and effect and enforceable by the Company, Company or the applicable Subsidiary in accordance with its terms, subject except as may be limited by Laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether considered in a Proceeding at law or in equity), (ii) the Company, or the applicable Subsidiary, has performed all obligations required to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadbe performed by it under each Company Material Contract, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company it is not in violation of any provision of, or taken or failed to take any act which, (with or without notice, notice or lapse of time, or both, would constitute a ) in breach or default under the provisions of, any Material Contract, thereunder and, to the Knowledge of the Company, no other party to such any Company Material Contract is in violation of any provision, or taken or failed to take any act which, (with or without notice, notice or lapse of time, or both, would constitute a ) in breach or default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received any written notice orthereunder and, to the Knowledge of the Company, other communication regarding no event has occurred or circumstance exists which (with or without notice or lapse of time, or both) would constitute a breach or default thereunder, and (iii) since January 1, 2014, neither the Company nor any actual of its Subsidiaries has received written notice of any actual, alleged, possible or possible potential breach or violation or breach of, or default under, or failure to comply with, any term or requirement of any Company Material Contract by the Company. Contract, or any written notice of revocation, cancellation or termination of any Company Material Contract.
(c) The Company has made available to Parent true and complete copies of each such Company Material Contract in all material respects (including all modifications, any material amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)or modifications thereto) as of the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Accuride Corp)
Material Contracts. (a) Part 2.9(a) of AGT has made available to the Company Disclosure Schedule lists each Contract true, correct and complete copies of all contracts and agreements (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement supplements thereto and all side letters to which AGT is a party affecting the Company obligations of any party thereunder) to which AGT or any of its subsidiaries is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or are material to the Company business, properties or assets of AGT and its subsidiaries taken as a whole, including, without limitation, (I) contracts or agreements with any supplier or customer, in each case which could result in the payment or receipt of monies in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 2,500,000 in any calendar year period; (II) to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000following are, individually or in the aggregate; and, material to the business, properties or assets of AGT and its subsidiaries taken as a whole, all:
(xvii) employment, product design or development, personal services, consulting, non-competition, severance or indemnification contracts (including, without limitation, any Contract not otherwise listed contract to which AGT or required any of its subsidiaries is a party involving employees of AGT or any of its subsidiaries); (ii) licensing, merchandising or distribution agreements; (iii) contracts granting a right of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale, lease or other disposition of material properties or assets of AGT or its subsidiaries or predecessors (by merger, purchase or sale of assets or stock or otherwise) entered into since April 16, 1996 and (vi) contracts or agreements with any Governmental Entity and (III) all commitments and agreements to be listed in Part 2.9(a) enter into any of the Company Disclosure Schedule foregoing items in (including Company Intellectual Property AgreementsI) thator (II) above (collectively, if terminatedtogether with any such contracts entered into in accordance with Section 5.1 hereof, or if such Contract expired without being renewed, would have a Company Material Adverse Effectthe "AGT Contracts").
(b) With respect to each Material Contract listed in Part 2.9(a) Each of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding AGT Contracts is valid and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to applicable bankruptcy, insolvency insolvency, fraudulent conveyance, reorganization, moratorium and the relief of debtors similar laws affecting creditors' rights and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadremedies generally, and would reasonably be expected subject, as to haveenforceability, individually to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and there is no default under any AGT Contract so listed either by AGT or, to the aggregateknowledge of AGT, a Company Material Adverse Effectby any other party thereto, and no event has occurred that with the Company is not in violation of any provision of, or taken or failed to take any act which, with or without notice, lapse of time, time or both, the giving of notice or both would constitute a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice thereunder by AGT or, to the Knowledge knowledge of the CompanyAGT, any other communication regarding party, in any actual such case in which such default or possible violation event would have a Material Adverse Effect on AGT.
(c) No party to any such AGT Contract has given notice to AGT of or made a claim against AGT with respect to any breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make in any such Contract case in which such breach or default would have a Material Contract)Adverse Effect on AGT.
Appears in 1 contract
Sources: Merger Agreement (Applied Graphics Technologies Inc)
Material Contracts. (a) Part 2.9(aSchedule 3.13(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set sets forth in Part 2.15(a) of the Company Disclosure Schedule) a list that is in effect, correct and that has not expired or been terminated in accordance with its termscomplete, as of the date hereof, of this Agreement the following Contracts to which the Company is Purchased Companies are a party or by which any of its properties or assets are otherwise bound as of the following categories date hereof (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”; provided that, for the avoidance of doubt, in no event shall any Benefit Plan or Employment Agreement be a Material Contract for purposes of this Agreement):
(i) agreements where (A) the performance remaining thereunder involves aggregate consideration to or by any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Purchased Company in excess of $100,000 in any calendar year1,000,000 per annum, including any and (B) such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract agreement is not terminable cancelable, without penalty material penalty, by any Purchased Company on 90 180 days’ or shorter less notice;
(ii) agreements which restrict, or purport to restrict, in any Contract relating to material respect or contain limitations on the acquisition or disposition by the Company ability of any operating business Purchased Company to compete in any line of business, or assets (other than pursuant to non-exclusive licenses in any geographic area or grants during any period of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businesstime;
(iii) agreements with any Seller or any of their respective Affiliates (including any intercompany indebtedness, guaranty, surety receivable or performance bond payable between any Purchased Company, on the one hand, and any Seller or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement their respective Affiliates (other than immaterial advances to employees and consultants in any Purchased Company), on the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencyother hand), commodity or other hedging or swap Contractthan agreements with other Purchased Companies;
(iv) any Contract creating agreements which relate to Indebtedness (excluding, for the avoidance of doubt, Contracts evidencing liabilities with respect to deposits and accounts, trade payables, letters of credit or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into capital leases made in the Ordinary Course ordinary course of Businessbusiness);
(v) agreements entered into within the past two years relating to the disposition or acquisition of any collective bargaining agreement assets, rights, businesses, properties or similar Contract companies individually or in the aggregate material to the business of the Purchased Companies or under which a Purchased Company has a continuing material indemnification obligation or any obligation with any trade unionrespect to an “earn-out”, works council contingent purchase price or other labor organizationcontingent payment, other than any agreement for the purchase of any raw materials, supplies, goods or services, or for the sale of any inventory in the ordinary course of business;
(vi) mortgages, pledges or security agreements or similar arrangements constituting a Lien upon the assets or properties of any offer letterPurchased Company or the Transferred Equity Interests, employment agreement, independent contractor agreement or other Contract in each case granted in connection with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess incurrence of $100,000 annuallyIndebtedness;
(vii) any Contract that is agreements for the sale or purchase of personal property having a settlementvalue individually, conciliationwith respect to all sales or purchases thereunder, or similar agreement with any Governmental Body or that imposes any monetary or in excess of $1,000,000, other material obligations upon than agreements entered into in the Company to any Governmental Body after the date ordinary course of this Agreementbusiness;
(viii) agreements for the sale or purchase of fixed assets or real estate having a value individually, with respect to all joint venturesales or purchases thereunder, partnership (involving sharing in excess of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services $1,000,000, other than Company Products)agreements entered into in the ordinary course of business;
(ix) agreements relating to any Contract under which Intellectual Property Right (other than (x) non-exclusive “off-the-shelf” software that are generally commercially available and have aggregate fees of less than $500,000 annually, (y) any other agreement that requires the payment of less than $100,000 annually or (z) non-exclusive licenses granted by any Purchased Company to any Person, including implied licenses granted by any Purchased Company in connection with the commercial sale of products, in each case, granted in the ordinary course of business, consistent with past practice), or agreements granting to any third party or Governmental Body has Entity any material rights;license to use any Company Intellectual Property Rights; and
(Ax) any Contract containing covenants restricting agreements creating or purporting to restrict competition whichevidencing the existence of a partnership, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area joint venture or other jurisdictionsimilar arrangement or relationship between any of the Purchased Companies and a third party (including any member of the Consolidated Group Entities, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Purchased Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each All Material Contract listed Contracts are in Part 2.9(a) full force and effect as of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable date hereof against the applicable Purchased Company party thereto and, to the Knowledge of the CompanySellers’ Knowledge, against each other party thereto other than the Companythereto, in each case in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesexpress terms thereof. Except for breachesas set forth in Schedule 3.13(b), violations there does not exist under any Material Contract any violation, breach or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation event of any provision ofdefault, or taken alleged violation, breach or failed to take any act whichevent of default, with or without noticeevent or condition that, after notice or lapse of time, time or both, would constitute a violation, breach or event of default under thereunder on the provisions of, any Material Contract, and, to the Knowledge part of the applicable Purchased Company, no other party except for such violations, breaches, events or conditions that, individually and in the aggregate, (i) would not reasonably be expected to such result in a Material Contract Adverse Effect and (ii) would not reasonably be expected to materially impair the ability of a Seller or Buyer to perform their respective obligations under this Agreement or any Ancillary Agreement or to consummate the transactions contemplated hereby or thereby.
(c) Schedule 3.13(c) sets forth a list that is in violation of any provisioncorrect and complete, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge as of the Companydate hereof, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract of the material commercial arrangements under which the Purchased Companies perform certain obligations and benefit from the reciprocal performance of obligations by the Company. The Company has made available other parties thereunder as of the date hereof pursuant to Parent true and complete copies Contracts that by their terms have expired or been terminated but which if not so expired or terminated would have constituted “Material Contracts” for purposes of each such this agreement (the “Material Contract Commercial Arrangements”); provided that, for the avoidance of doubt, in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract no event shall any Benefit Plan or Employment Agreement be a Material Contract)Commercial Arrangement for purposes of this Agreement.
Appears in 1 contract
Sources: Transaction Agreement (Connors Bros. Holdings, L.P.)
Material Contracts. (a) Part 2.9(aSchedule 6.11(a) of the Company Disclosure Schedule lists each Contract sets forth all Contracts (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand all amendments, ---------------- modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement supplements thereto and all side letters to which such Seller is a party affecting the Company obligations of any party thereunder) to which such Seller or any of its Subsidiaries is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
that relate to: (i) material licensing, merchandising, installation, servicing, production, manufacturing, retailing, sales (including sales agency) or programming, production or distribution (including any Contract (or group of related Contractsprogramming "puts"), other than including all such contracts and agreements containing exclusivity or "most favored nation" provisions; (ii) a Company Planright of first refusal, that requires future payments by first negotiation, "tag along" or "drag along" rights applicable to the Company in excess of $100,000 in any calendar year, including any such Contract (capital stock or group material assets of such Contracts that are relatedSeller; (iii) for a partnership or joint venture, or cooperative development efforts; (iv) the purchaseacquisition, sale, lease or other disposition of material properties or assets of such Seller or its Subsidiaries or predecessors (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1998; (v) agreements with any Governmental Entity; (vi) material promotion, marketing, sponsorship or similar arrangements; (vii) indebtedness for borrowed money, letters of credit, security agreements, lockbox arrangements or guaranties of the foregoing; (viii) real property, raw materials, goods, commodities, utilities, equipment, suppliesproperty deeds or leases and material equipment leases including all satellite transponder leases; (ix) material software or Intellectual Property license or maintenance agreements; (x) customer services (including telemarketing and billing); (xi) the provision of any services, products or payments to or from any officer, director, employee or other personal propertyaffiliate of such Seller or such officer, director or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
employee; (iixii) any Contract all agreements relating to the acquisition retransmission of Primestar's signal by cable systems or disposition by the Company of any operating business other multichannel programming distributor; and (xiii) all binding commitments and agreements to enter into any contracts or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract agreements relating to any of the acquisition or disposition by the Company of any operating business or assets foregoing (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationscollectively, other than together with any such Contracts entered into in accordance with Section 9.1, the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens"Material ----------- -------- Contracts"); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.. ---------
(b) With respect to To the knowledge of such Seller, each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding Contracts is valid and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject and there is no default or alleged default under any Material Contract so listed either by such Seller or, to (A) Laws the Knowledge of general application relating to bankruptcysuch Seller, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and by any other equitable remedies. Except for breaches, violations or defaults which have not hadparty thereto, and no event has occurred that with the lapse of time or the giving of notice or both would reasonably be expected constitute a default thereunder by such Seller or, to havethe Knowledge of such Seller, any other party, in any such case in which such default or event would, individually or in the aggregate, have a Company Material Adverse EffectEffect on such Seller. Except as set forth in Schedule 6.11(a), all Material Contracts between such ---------------- Seller and its Distributors, sales agents, dealers and retailers are terminable by such Seller without cause on not greater than 30 days' notice, with no material termination fee or, except for commissions or fees earned prior to the Company is not in violation of termination date, continuing payment obligations thereunder.
(c) No party to any provision Material Contract has given notice to such Seller of, or taken or failed to take any act which, made a claim against such Seller with or without notice, lapse of time, or both, would constitute a default under the provisions ofrespect to, any breach or default thereunder, in any such case in which such breach or default would, individually or in the aggregate, have a Material ContractAdverse Effect on such Seller. Such Seller is not currently being audited, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company and has not received notice of an intent to conduct any written notice oraudit, under any material programming agreement.
(d) Schedule 6.11(d) identifies all of Sellers' Full Service Providers ---------------- and master sales agents.
(e) The payment terms with respect to the Knowledge leasing of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by GE transponders are set forth in the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)GE Transponder Lease.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Material Contracts. Schedule 4.9 lists (aor cross-references specifically to an item or items on another Schedule which lists) Part 2.9(a) all of the Company Disclosure Schedule lists each Contract (following contracts, subcontracts, leases, commitments, plans, agreements, understandings, instruments, notes, options, warranties, purchase order, licenses, sublicenses, benefit plans or other than legally binding commitment or undertaking of any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement nature to which the Company any Seller Entity is a party arising out of, relating to or by resulting from the Business or to which any of its properties or assets are otherwise the Transferred Assets is bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleeach a “Material Contract” and collectively, the “Material Contracts”):
(ia) any Contract employment contract for any Eligible Employee (as defined below) or group of related Contracts), other than a Company Plan, that requires future payments by any contract or to the Company in excess of $100,000 in agreement with any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticelabor union;
(iib) any Contract relating to contract or agreement involving the acquisition expenditure of more than fifty thousand dollars ($50,000) whether or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any not such Contracts entered into purchase is in the Ordinary Course of Business;
(iiic) any guaranty, surety contract or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or agreement providing for the creation purchase of all or granting any Lien upon any substantially all of the property or assets its requirements of the Company a particular product from a supplier;
(excluding Permitted Liens); (Cd) any Contract contract or agreement which by its terms does not terminate or is not terminable without penalty within three (13) relating to any loan or advance to any Person which is outstanding as of months after the date hereof;
(e) any contract or agreement for the sale or lease of this Agreement (other than immaterial advances to employees and consultants Products not made in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(ivf) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company contract with any Third Party; dealer, sales representative, sales agent or (B) any Contract that distributor, including whether such contract provides for “earnsuch dealer, sales representative, sales agent or distributor with the right to distribute Products on an exclusive or non-outs” exclusive basis, the territory covered by such contract, the term of such contract and whether such contract is then in effect or other contingent payments by or expired and subject to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)renewal;
(vg) any collective bargaining agreement indemnification, or similar Contract with any trade union, works council or other labor organizationcommitment to issue any such indemnification;
(vih) any offer lettercontract or agreement relating to the acquisition, employment agreementtransfer, independent contractor agreement development, license, sharing or other Contract with non-disclosure of any current Company Service Provider pursuant to which the Company is ACON Intellectual Property Asset or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallyACON In-Licensed Intellectual Property Assets, including all Licenses;
(viii) any Contract that is a settlementcontract or agreement expressly imposing any restriction or limitation on the right or ability of any Seller Entity (i) to compete with any other Person or in any line of business, conciliation(ii) to acquire any product or other asset or any services from any other Person, or similar agreement with (iii) to develop, sell, supply, distribute, offer, support, manufacture, market, service any Governmental Body product, component, raw material, technology or that imposes asset to or for any monetary or other material obligations upon the Company to any Governmental Body after the date of this AgreementPerson;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ixj) any Contract contract or agreement (i) to which any Governmental Authority is a party or under which any Governmental Body Authority has any material rightsrights or obligations, or (ii) directly or indirectly benefiting any Governmental Authority;
(Ak) any Contract containing covenants restricting contract or purporting to restrict competition which, in either case, have, would have agreement or purport to have the effect of prohibiting the Company, or, after the Closing, Parent court filing seeking or the Surviving Entity from engaging in any business or activity in any geographic area compromising a lawsuit or other jurisdictionlegal or administrative proceeding or claim involving the ACON Intellectual Property Assets, other than the ACON In-Licensed Intellectual Property Assets or Third Party Rights or entering any such covenant set forth in this Agreement settlement or the agreements ancillary hereto; compromise;
(Bl) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively withpartnership, or grant exclusive rights or rights of first refusal tojoint venture, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term contract, arrangement or provision by which another party to such Contract or agreement between any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another PersonSeller Entity and a third party;
(xim) any material programs, agreements or arrangements with respect to advertising allowances, trade discounts, volume discounts, store opening allowances, extended dating or other similar discount, allowance or rebate programs; or
(n) any contract, agreement, or understanding or arrangement not otherwise identified in this Section 4.9 and material, which solely for purposes of this Section 4.9(n) is (i) a contract involving an amount of fifty thousand dollars ($50,000) or greater per year, or (ii) involves the license, transfer, restriction or ownership of any Intellectual Property Assets or any asset or right that would constitute an Intellectual Property Asset. Each Material Contract involving a sales agentis valid and is in full force and effect and constitutes the legal, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services valid and binding obligation of the Company;
(xii) any Contract involving commitments to make capital expenditures or to ContractSeller Entities, purchase or sell assets involving $100,000 or more;
(xiii) any leaseas the case may be, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge knowledge of the CompanySeller Entities, against each party thereto the other than the Companyparties thereto, enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws affecting the rights of creditors generally and subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law law governing (and all limitations on) specific performance, injunctive relief and other equitable remedies. Except for breachesNeither the Seller Entities nor, violations or defaults which have not hadto the knowledge of the Seller Entities, any other party to any Material Contract, is in default in complying with any material provisions thereof, and would reasonably be expected to have, individually no condition or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision of, event or taken or failed to take any act fact exists which, with or without notice, lapse of time, time or both, both would constitute a default under the provisions of, any Material Contract, andlikely constitute, to the Knowledge knowledge of the CompanySeller Entities, no other party to such Material Contract is in violation of any provision, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under thereof on the provisions part of any Material Contract. Since January 1, 2021, the Company has not received any written notice Seller Entities or, to the Knowledge knowledge of the CompanySeller Entities, on the part of any other communication regarding any actual or possible violation or breach of, or default under, party thereto. No contracting party to any Material Contract has notified (whether orally or in writing) the Seller Entities of its intention to terminate, cancel or modify such Material Contract or otherwise to reduce or change its activity thereunder so as to affect adversely the benefits derived, or currently expected to be derived, by the CompanySeller Entities under such Material Contract. The Company has made available to Parent true True, correct and complete copies of each such all Transferred Contracts and Material Contract in all material respects Contracts (including all modifications, amendments other than commercial off the shelf computer software having a cost of less than one thousand dollars ($1,000) per seat or license and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific other standard form non-exclusive licenses with respect to provisions that make such Contract Intellectual Property Assets available generally which licenses have a Material Contract)cost of less than fifty thousand dollars ($50,000) per year) have been delivered to Buyer on or before the Closing Date.
Appears in 1 contract
Sources: Acquisition Agreement (Inverness Medical Innovations Inc)
Material Contracts. (a) Part 2.9(a) Schedule 4.14 lists each of the Company Disclosure Schedule lists each Contract following Contracts and other agreements (other than any Company Plan set forth or, in Part 2.15(athe case of oral Contracts, summaries thereof) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by or to which the Company or any of its assets or properties is bound or assets are otherwise bound of the following categories subject (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “and agreements being "Material Contracts”"):
(i) any Contract (or group of related Contracts)advertising, market research and other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticemarketing agreements;
(ii) any Contract relating to the acquisition employment, severance, non-competition, consulting or disposition by other agreements of any nature with any current or former stockholder, partner, officer or employee of the Company or any Affiliate of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of BusinessPersons;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or agreements relating to Debt the making of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of by the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractCompany;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses agreements providing for the indemnification by the Company with of any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Person;
(v) any collective bargaining agreement or similar Contract agreements with any trade union, works council or other labor organizationGovernmental Authority except those entered into in the ordinary course of business which are not material to the Company;
(vi) any offer letterContracts, employment agreementagreements and other arrangements for the sale of assets or for the furnishing of services, independent contractor agreement goods or other Contract products by or to the Company, including supply agreements, (A) with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) firm commitments having a value in excess of $100,000 annually10,000 or (B) having a term which is greater than six months and which is not terminable by the Company on less than 90 days' notice without the payment of any termination fee or similar payment;
(vii) any Contract that is a settlementbroker, conciliationdistributor, dealer, representative or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreementagency agreements;
(viii) all joint venture, partnership any agreements (involving sharing of profitsincluding settlement agreements) or similar Contracts (and not including any sharing of profits by a Third Party with currently in effect pursuant to which the Company that are based on sales of goods licenses the right to use any Intellectual Property to any Person or services other than Company Products)from any Person, and research and development agreements;
(ix) any Contract under confidentiality agreements entered into by the Company during the period commencing five years prior to the date hereof pursuant to which any Governmental Body confidential information has any material rightsbeen provided to a third party or by which the Company was restricted from providing information to third parties, other than those entered into the ordinary course of business relating to the Company's operations;
(Ax) any Contract containing covenants restricting voting trust or purporting similar agreements relating to restrict competition which, in either case, have, would have or purport any of the Ownership Interests to have which any of the effect of prohibiting the Company, or, after the Closing, Parent Shareholders or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personparty;
(xi) any Contract involving a sales agentjoint venture, representative, distributor, reseller, middleman, marketer, broker, franchisor partnership or similar Person who is entitled to receive commissions, fees documents or markups related to the provision or resale of goods or services of the Companyagreements;
(xii) any Contract involving commitments agreements that limit or purport to make capital expenditures limit the ability of the Company to own, operate, sell, transfer, pledge or to Contract, purchase or sell assets involving $100,000 or more;otherwise dispose of any assets; and
(xiii) any leaseall other agreements, sublease, rental Contracts or occupancy agreement, license (commitments not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or made in the aggregate; and
(xvi) any Contract not otherwise listed or required ordinary course of business which are material to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectCompany.
(b) With respect to each Each Material Contract listed in Part 2.9(a) of the Company Disclosure Scheduleis legal, such Material Contract is, to the Knowledge of the Company, valid and binding on and enforceable against the Company and, to the Knowledge of the CompanyCompany or a Shareholder, against the other parties thereto and is in full force and effect except as enforceability may be limited by applicable law. Upon consummation of the transactions contemplated by this Agreement, to the Knowledge of the Company or the Shareholders, each Material Contract shall remain in full force and effect without any loss of benefits thereunder and, except as disclosed on Schedule 4.14, without the need to obtain the consent of any party thereto other than to the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediestransactions contemplated by this Agreement. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the The Company is not (and with the giving of notice or lapse of time would not be) in violation of any provision material breach of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material default under the provisions ofunder, any Material Contract, Contract and, to the Knowledge of the CompanyCompany or the Shareholders, no other party to such Material Contract thereto is in violation of any provisionmaterial breach of, or taken or failed to take any act whichmaterial default under, with or without notice, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the The Company has not received any written notice orthat any Material Contract is not enforceable against any party thereto, that any Material Contract has been terminated before the expiration of its term or that any party to a Material Contract intends to terminate such Material Contract prior to the Knowledge of the Companytermination date specified therein, or that any other communication regarding any actual or possible violation or party is in breach of, or default under, any Material Contract by the CompanyContract. The Company has made available to Parent true True and complete copies of each such all Material Contract Contracts or, in all material respects (including all modificationsthe case of oral agreements, amendments and supplements thereto and waivers thereunderif any, but not including purchase orders and similar confirmatory documents not specific written summaries thereof have been delivered to provisions that make such Contract a Material Contract)Purchaser.
Appears in 1 contract
Sources: Merger Agreement (Uti Corp)
Material Contracts. (a) Part 2.9(aSection 3.09(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectfollowing contracts and agreements, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(acontracts and agreements as are set forth in Section 3.09(a) of the Company Disclosure Schedule, the Schedule being “Material Contracts”):
(i) pursuant to which, the Company or any Contract of its Subsidiaries incurred Indebtedness exceeding $100,000 for which the Company or any of its Subsidiaries will be liable following the Closing.
(ii) which involve, as parties thereto, the Company or group any of related Contractsits Subsidiaries on the one hand, and any of the directors, officers or other Affiliates of the Company and its Subsidiaries (other than the Company and its Subsidiaries), on the other than a hand and involve the payment of $100,000 or more by the Company Planor any of its Subsidiaries, that requires future payments for which the Company or any of its Subsidiaries will be liable following the Closing;
(iii) which involve the payment of $250,000 or more by or to the Company in excess of $100,000 in or any calendar yearor its Subsidiaries from January 1, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of 2012 until the date of this Agreement (other than immaterial advances non-exclusive licenses to employees end user customers entered into in the Ordinary Course of Business and consultants Real Property Leases);
(iv) which establish a joint venture or partnership;
(v) any agreement for the disposition of a material portion of the assets or business of the Company or any of its Subsidiaries (other than sales of products in the Ordinary Course of Business) or (2) obligating any agreement for the acquisition of the assets or committing business of any other entity which would be material to the Company to make any such loans and its Subsidiaries taken as a whole (other than purchases of inventory or advances; and (D) any currency, commodity or other hedging or swap Contractcomponents in the Ordinary Course of Business);
(ivvi) any Contract creating or purporting to create agreement which contains any partnership, alliance or joint venture provisions requiring the Company or any sharing of profits its Subsidiaries to indemnify any other party without limitation with respect to amount or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company timing of claim submission (excluding any contingent payments arising pursuant to recruiting indemnities contained in agreements for Company Service Providers the purchase, sale or license of products or services entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlementagreement that, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after following the Closing, Parent or would prohibit Parent, the Surviving Entity Corporation or any of Parent’s other Subsidiaries from engaging operating in any business line of business, providing any good or activity service (either generally or to any Person), operating in any geographic area or other jurisdictionmarket, other than or soliciting or hiring any such covenant set forth in this Agreement or the agreements ancillary heretoPerson; or
(Bviii) any Contract in agreement which the Company or any of its Subsidiaries has granted “exclusivitymost favored nation” pricing provisions or that requires the Company marketing or distribution rights relating to deal exclusively withany products or territory, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 and in any calendar year to the extent the Contract such case is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually such Subsidiary on ninety (90) days’ or in the aggregate; and
(xvi) less notice without any Contract not otherwise listed penalty or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectpremium.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of all Material Contracts, including any and all amendments to such Material Contracts. With respect to each Material Contract, such Material Contract is legal, valid, binding and enforceable and in all full force and effect against the Company or its Subsidiary that is the party thereto, as applicable, and, to the Knowledge of the Company, against each other party thereto.
(c) The Company and its Subsidiaries are not in material respects breach or violation of, or default under any Material Contract and no event has occurred, is pending or to the Knowledge of the Company is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the Company or any Subsidiary.
(including all modificationsd) None of the Material Contracts have been canceled by the other party, amendments and supplements thereto to the Knowledge of the Company, no other party is in material breach or violation of, or material default under, any Material Contract and waivers thereunderno event has occurred, but not including purchase orders and similar confirmatory documents not specific is pending or, to provisions that make the Knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or material default by any other party under such Contract a Material Contract. The Company and its Subsidiaries have not received any written claim of default under any Material Contract.
(e) Neither the Company nor any Subsidiary is a party to any binding oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 3.09(a) of the Disclosure Schedule under the terms of Section 3.09(a).
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) Section 4.12 of the Company Disclosure Schedule lists each Contract (other than any Company Plan set Letter sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, a list as of the date of this Agreement of each Contract to which either the Company or any of its Subsidiaries is a party or bound pursuant to which the Company has current or future obligations, other than each Contract solely among the Company and its wholly owned Subsidiaries that:
(a) provides that any of them will not compete with any other Person, or which grants “most favored nation”, rights of first refusal or offer or similar covenants to the counterparty to such Contract, in each case that is material to the Company and its Subsidiaries taken as a party whole;
(b) purports to limit in any material respect either the type of business in which the Company or by its Subsidiaries may engage or the manner or locations or geographic areas in which any of them may so engage in any business;
(c) requires the Company or its properties Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) to deal exclusively with any Person or group of related Persons which Contract is material to the Company and its Subsidiaries, taken as a whole (other than any licenses or other Contracts entered into in the ordinary course);
(d) is material to the formation, creation, operation, management or control of any partnership, joint venture, limited liability company or other similar agreements or arrangements, the book value of the Company’s investment in which exceeds $5,000,000;
(e) is a Lease Agreement or another Contract for the lease of real or personal property, in each case, providing for annual payments of $1,000,000 or more;
(f) is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(g) contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person, other than as would not be material in type or amount;
(h) was entered into with Affiliates (other than the Company and its Subsidiaries), any director, any officer or any beneficial owner of five percent (5%) or more of any class of equity interests of Company or any of its Subsidiaries that is not a Company Plan and that was entered into other than on arms’ length basis;
(i) involves or provides for the future disposition or acquisition of any asset or property with a fair market value or purchase price in excess of $7,000,000, or any material merger, consolidation, or similar business combination transaction pursuant to which the Company or any of its Subsidiaries has material outstanding obligations (excluding indemnification obligations in respect of representations and warranties that survive indefinitely nor for periods equal to a statute of limitations);
(j) pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” obligations that could result in payments in excess of $1,000,000 in the aggregate;
(k) any material contract between the Company or any of its Subsidiaries and a Governmental Entity;
(l) prohibits the payment of dividends or distributions in respect of the equity interests of the Company or any of its Subsidiaries, prohibits the pledging of the equity interests or assets are otherwise bound of the following categories Company or any of its Subsidiaries, or prohibit the issuance of guarantees by the Company or any of its Subsidiaries;
(m) requires the Company or any of its Subsidiaries, directly or indirectly, to make any advance, loan, extension of credit, service penalty or capital contribution to, or other investment in, any Person (other than the Company or any of its wholly owned Subsidiaries) in excess of $1,000,000 individually or $5,000,000 in the aggregate;
(n) constitutes any settlement agreement or other resolution of any actual of threatened Proceeding pursuant to which the Company or any of its Subsidiaries has outstanding payment obligations in excess of $1,000,000;
(o) is a Contract material to the Company and its Subsidiaries, taken as a whole, that grants rights to use or practice rights, or covenants not to assert, under Intellectual Property, including agreements providing for access and use of hosted Software and licenses to use or practice rights under Intellectual Property granted by (A) the Company or any of its Subsidiaries to a third Person or (B) a third Person to the Company or any of its Subsidiaries, in each case of (A) and (B), other than non-exclusive licenses granted by the Company or any of its Subsidiaries to vendors, suppliers and to customers in the ordinary course of business or licenses for Software that is commercially available on standard terms;
(p) is a Contract material to the Company and its Subsidiaries, taken as a whole (other than an employee that has executed an agreement pursuant to which such employee assigns to the Company or its Subsidiaries all right, title and interest in and to all Intellectual Property created in the course of such employee’s employment) pursuant to which (A) any third Person creates or develops for or on behalf of the Company or any of its Subsidiaries any Intellectual Property that is, or (B) the Company or any of its Subsidiaries creates or develops any Intellectual Property for any third Person;
(q) is a collective bargaining agreement or other material Contract to or with any labor union or other employee representative of a group of employees; or
(r) is a Contract not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations applied to such Contract type) described in the foregoing clauses (a) through (q) that has or would reasonably be likely to, either pursuant to its own terms or the terms of any related Contracts, involve payments in excess of $5,000,000 in any year (such Contracts required to be disclosed under Part 2.9(alisted pursuant to clauses (a)-(q) of the Company Disclosure Scheduleabove and this clause (r), the “Material Contracts”):
(i) any Contract (or group ). A true, correct and complete copy of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or postedMaterial Contract, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding amended as of the date of this Agreement (other than immaterial advances Agreement, including all attachments, schedules and exhibits thereto, has been made available to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company Parent prior to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services . Each of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, Material Contracts is valid and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by binding on the Company or any successor thereto in excess of $100,000its Subsidiaries, individually or in as the aggregate; and
(xvi) any Contract not otherwise listed or required to case may be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each other party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadthereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, . Neither the Company is not in violation nor any of 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, any Material Contract, andits Subsidiaries nor, to the Knowledge of the Company, no any other party to such Material Contract is in violation breach of or in default under any provisionMaterial Contract, or taken or failed to take any act whichand no event has occurred that, with or without notice, the lapse of time, time or the giving of notice or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, thereunder by the Company has not received or any written notice orof its Subsidiaries, in each case, except for such breaches and defaults as would not, individually or in the aggregate, reasonably be expected to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any have a Company Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Covetrus, Inc.)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan Except as set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effecton Schedule 2.10(a), and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party not bound by any material oral or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
written (i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company employment of any operating business Person or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, retirement or other obligations or rights employee benefit plan (including put or call options); or (C) any Contract under which the Company have is obligated to make any indemnification obligationspayment to any Person as a result of a change in control of the Company or under which any Person may require the Company to make a payment to any Person as a result of a change in control of the Company); (ii) Contract which contains restrictions with respect to payment of dividends or any other distribution in respect of the Company’s capital stock; (iii) Contract relating to capital expenditures in excess of Fifty Thousand US Dollars (US$50,000) per individual item or One Hundred Thousand US Dollars (US$100,000) in the aggregate; (iv) Contract involving Indebtedness of the Company; (v) loan or advance to, other than or investment in, any Person or any Contract relating to the making of any such Contracts loan, advance or investment; (vi) guarantee or other contingent liability in respect of any Indebtedness or obligation of any Person; (vii) management service, consulting or any other similar type contract or arrangement; (viii) Contract limiting the ability of the Company to engage in any line of business or to compete with any Person; (ix) Contract which by its termination would have a Material Adverse Effect on the Company; (x) Contract not entered into in the Ordinary Course of Business;
which is not cancelable without penalty within thirty (iii30) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Companydays; (Bxi) Contract involving any Contract evidencing resolution or relating to Debt settlement of the Company any actual or providing for the creation of threatened litigation, arbitration, claim or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens)other dispute; (Cxii) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Partylease; or (Bxiii) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
customer listed (vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(alisted) of the Company Disclosure on Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.2.10(b)
(b) With respect to each Material Contract listed in Except as set forth on Part 2.9(a) 1 of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectSchedule 2.10(b), the Company is not in violation of a party to any provision of, Contract or taken or failed to take Contracts with any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge customer that accounts for more than one percent (1%) of the Company, no other party to such Material Contract is in violation total sales of any provision, 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 any Material Contract. Since Company during the period commencing on January 1, 20212005 through June 30, 2005. Set forth on Part 2 of Schedule 2.10(b) is a true and complete list of all suppliers of the Company has not received any written notice or, to whom the Knowledge Company pays more than One Hundred Thousand US Dollars (US$100,000) per year based upon tax year 2004. The relationships of the CompanyCompany with each such customer and supplier are good commercial working relationships, other communication regarding any actual and except as set forth on Schedule 2.10(b) no such customer or possible violation supplier has canceled or breach ofotherwise terminated, or default underthreatened to cancel or otherwise terminate, any Material Contract by its relationship with the Company. The Company has made available not received any notice that any such customer or supplier may cancel or otherwise materially and adversely modify its relationship with the Company or limit its services, supplies or materials to Parent true the Company or its usage or purchase of the services and complete copies products of each the Company either as a result of the transactions contemplated hereby or otherwise.
(c) Each Contract set forth (or required to be set forth) on Schedule 2.10(a) and Schedule 2.10(b) is in full force and effect and there exists no (i) material default or event of default by the Company or any other party to any such Material Contract, or (ii) event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default by the Company or any other party thereto. The Company has not violated any of the material terms or conditions of any Contract set forth (or required to be set forth) on Schedule 2.10(a) or Schedule 2.10(b) and all of the covenants to be performed by any other party thereto have been fully performed in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)respects.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 3.7(a) of the Company Disclosure Schedule lists sets forth each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following to which the Company is a party to or by which any of its properties or assets are otherwise it is bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleeach, the a “Material ContractsContract”):
(i) any Contract (or group lease of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess personal property providing for annual rentals of $100,000 in 120,000 or more, or any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract pursuant to which any Intellectual Property or Technology that is currently being used by the Company is or has been licensed, sold, assigned or otherwise conveyed or provided to the Company (other than Contracts for Standard Software);
(iii) any Contract pursuant to which any Intellectual Property or Technology is or has been licensed (whether or not such license is currently exercisable), sold, assigned or otherwise conveyed or provided to a third party by the Company, or pursuant to which the Company has agreed not to enforce any Intellectual Property against any third party, except for non-disclosure Contracts entered into in the ordinary course of business consistent with past practice pursuant to the Company’s standard form provided to Parent prior to the date of this Agreement or non-disclosure Contracts substantially similar to such Contracts;
(iv) any Contract imposing any restriction on the Company’s right or ability, or, after the Effective Time, the right or ability of Parent or the Surviving Corporation or any of their respective Affiliates (A) to compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent or the Surviving Corporation or any of their respective Affiliates after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the Company Products or any related Technology or Intellectual Property), (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any Technology in connection with the Company Business;
(v) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by the Company of $250,000 or more or (B) aggregate payments by the Company of $250,000 or more;
(vi) any distributor, original equipment manufacturer, reseller, value added reseller, sales, agency or manufacturer’s representative Contract providing for aggregate payments of $100,000 or more on an annual basis;
(vii) any Contract under which the Company provides services to a third party, including any consulting, development, integration, or support services Contract providing for aggregate payments of $100,000 or more on an annual basis;
(viii) any Contract providing for “most favored nation” terms, including such terms for pricing;
(ix) any partnership, joint venture or any sharing of revenues, profits, losses, costs or liabilities or any other similar Contract, other than commission and bonus arrangements with employees in the ordinary course of business and consistent with past practice, and pure intercompany contracts;
(x) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) entered into after January 1, 2009 or pursuant to which the Company has any current or future rights or obligations;
(xi) any Contract relating to Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any operating business or assets asset);
(other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (Bxii) any Contract relating to the acquisition acquisition, issuance or disposition by the Company transfer of any operating business or assets securities (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is Options outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of BusinessAgreement);
(vxiii) any collective bargaining agreement Contract relating to any interest rate, currency or similar Contract with any trade union, works council commodity derivatives or other labor organizationhedging transaction;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ixxiv) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting Person has directly or purporting to restrict competition which, in either case, have, would have indirectly guaranteed any liabilities or purport to have obligations of the effect of prohibiting the Company, or, after the Closing, Parent Company or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” directly or that requires the Company to deal exclusively with, indirectly guaranteed liabilities or grant exclusive rights or rights obligations of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (Cin each case other than endorsements for the purposes of collection in the ordinary course of business);
(xv) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year relating to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) creation of any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled Lien with respect to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services asset of the Company;
(xiixvi) any Contract involving commitments which contains any provisions requiring the Company to make capital expenditures or to Contract, indemnify any other party (excluding indemnities contained in agreements for the purchase or sell assets involving $100,000 or morelicense of Company Products in the ordinary course of business consistent with past practice);
(xiiixvii) any leaseContract with any Related Person;
(xviii) any employment, subleaseseverance, rental retention, bonus or occupancy agreementother agreement with any current or former employee, license (not relating officer, director, advisor or consultant of the Company pursuant to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee has any current or lessor of, future rights or owns, uses or operates any leasehold or other interest in any real or personal propertyobligations;
(xivxix) the Company Intellectual Property Agreementsany Contract with any Governmental Authority; and
(xvxx) any other Contract (excluding any Contract disclosed not made in Part 2.14(f) the ordinary course of business that is material to the Company Disclosure Schedule) and that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract is not otherwise listed or required to be listed set forth in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectthis Section 3.7(a).
(b) With respect The Company has made available in the dataroom to each Parent accurate and complete copies of all written Material Contract listed Contracts identified in Part 2.9(aSection 3.7(a) of the Company Disclosure Schedule, such including all amendments thereto. The Company is not party to a Material Contract isthat is not in written form.
(c) Each Material Contract is a valid and binding agreement of the Company and each party thereto, and is in full force and effect, and the Company is not, and to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each no other party thereto other than is in default or breach in any material respect under the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation terms of 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, any Material such Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provisionevent has occurred, and no circumstance or taken or failed to take any act whichcondition exists, that (with or without notice, notice or lapse of time) will, or bothwould reasonably be expected to, would constitute (i) result in a default under violation or breach of any of the provisions of any Material Contract. , (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or performance of any Material Contract, or (iv) give any Person the right to cancel, terminate or modify any Material Contract.
(d) Since January 1, 20212010, the Company has not received any written notice or, to the Knowledge of the Company, any other communication regarding any actual or possible material violation or breach of, or default under, any Material Contract.
(e) Except as set forth on Section 3.7(e) of the Company Disclosure Schedule, no Person is renegotiating, or has a right (or has asserted a right) pursuant to the terms of any Material Contract by to renegotiate, any amount paid or payable to the Company under any Material Contract or any other material term or provision of any Material Contract. No Person has delivered notice to the Company. The , and the Company otherwise has made available no reason to Parent true and complete copies of each believe, that such Person intends to terminate a Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make which such Contract Person is a Material Contract)party.
Appears in 1 contract
Sources: Merger Agreement (Teradyne, Inc)
Material Contracts. (a) Part 2.9(a2.11(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, effect as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a2.11(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, ) that requires future payments by or to the Company in excess of $100,000 in any calendar yearCalendar Year, including any such Contract (or group of such Contracts that are relatedrelated Contracts) for the purchase, lease purchase or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) (A) any Contract relating to the acquisition or disposition by the Company of any operating business or material assets (other than pursuant to non-exclusive licenses the acquisition or grants disposition of non-exclusive rightsassets in the ordinary course of business); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); ) or (C) any Contract under the primary purpose of which the Company have any is to provide indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) (A) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted LiensEncumbrances); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course ordinary course of Businessbusiness consistent with past practices) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) (A) any Contract creating or purporting to create any partnership, alliance partnership or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Company;
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Person or Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this AgreementBody;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ixvii) any Contract under which any Governmental Body has any material rights;
(viii) (A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, Company or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in connection with this Agreement or the agreements ancillary heretoAgreement; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year Calendar Year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to must be at least as favorable to such party as those offered to another Person;
(xiix) any Contract (other than purchase orders and statements of work) with a Major Supplier;
(x) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xiixi) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or moremore individually;
(xiiixii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property)license, installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiii) any Inbound License, Outbound License, or Other IP Contract;
(xiv) any power of attorney granted by the Company Intellectual Property Agreementsthat is currently in effect; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a2.11(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a2.11(a) of the Company Disclosure Schedule, : (i) such Material Contract is, to the Knowledge of the Company, is binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws laws of general application relating to bankruptcy, insolvency and the relief of debtors debtors, and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, ; and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) the Company is not in violation material breach or material default of any provision of, or taken or failed to take any act whichsuch Material Contract or, with the giving of notice or the giving of notice and passage of time without noticea cure would be, lapse in material breach or material default of time, or both, would constitute a default under the provisions of, any such Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation material breach or material default of any provision, 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 any such Material Contract. Since January 1, 2021, the The Company has not received delivered or otherwise made available to Parent or its counsel true, correct and complete copy of each such Material Contract.
(c) As of the date of this Agreement, no Third Party to any Material Contract has provided written notice or, to the Knowledge of the Company, other communication regarding any actual oral notice to the Company that it intends to materially modify or possible violation or breach of, or default under, cancel any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract which it is a Material Contract)party.
Appears in 1 contract
Sources: Merger Agreement (Chimerix Inc)
Material Contracts. (aA) Part 2.9(a) of the The Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsmade available to Parent, as of the date of this Agreement Agreement, true, correct and complete copies of (including all amendments or modifications to), all Contracts 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 properties or assets are otherwise is bound of the following categories (such Contracts required to be disclosed under Part 2.9(aother than Benefit Plans) of the Company Disclosure Schedule, the “Material Contracts”):that:
(i) any Contract (are or group of related Contracts), other than a Company Plan, that requires future payments would be required to be filed by or to the Company in excess as a “material contract” pursuant to Item 601(b)(10) of $100,000 in any calendar year, including any such Contract (Regulation S-K under the Securities Act or group of such Contracts that are related) for disclosed by the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty Company on 90 days’ or shorter noticea Current Report on Form 8-K;
(ii) any Contract relating with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, relate to the acquisition formation, creation, operation, management or disposition by control of any partnership or joint venture that is material to the business of the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to and the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsSubsidiaries, other than any such Contracts entered into in the Ordinary Course of Businesstaken as a whole;
(iii) relate to indebtedness for borrowed money (including the issuance of any guarantydebt security), surety any capital lease obligations, any guarantee of such indebtedness or performance bond debt securities of any other Person, or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity “keep well” or other hedging or swap Contractagreement to maintain any financial statement condition of another Person;
(iv) any Contract creating were entered into after December 31, 2007 or purporting not yet consummated, and involve the acquisition from another person or disposition to create any partnershipanother Person, alliance directly or joint venture indirectly (by merger or any sharing otherwise), of profits capital assets or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” capital stock or other contingent payments by equity interests of another Person for aggregate consideration under such Contract (or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered series of related Contracts) in into in the Ordinary Course excess of Business)$150,000;
(v) any collective bargaining agreement relate to an acquisition, divestiture, merger or similar Contract with any trade uniontransaction that contains representations, works council covenants, indemnities or other labor organization;
obligations (vi) any offer letterincluding indemnification, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “mostearn-favored-nation,” “best pricingout” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Propertycontingent obligations), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest that are still in any real or personal property;
(xiv) the Company Intellectual Property Agreements; effect and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and, could reasonably be expected to result in payments in excess of $50,000;
(xvivi) other than an acquisition subject to clause (v) above, obligate the Company to make any Contract capital commitment or capital expenditure (including pursuant to any joint venture), other than acquisitions of inventory and employee compensation expenses that are capitalized, in excess of $250,000;
(vii) relate to any guarantee or assumption of other obligations of any third party (other than Subsidiaries) or reimbursement of any maker of a letter of credit, except for agreements entered into in the ordinary course of business consistent with past practice which agreements relate to obligations which do not exceed $50,000 in the aggregate for all such agreements;
(viii) are license, cross-license, royalty, development or other Intellectual Property agreements that involve total fees of more than $150,000 or are otherwise listed or required material to be listed in Part 2.9(a) the business of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.and its Subsidiaries;
(bix) With relate to the provision of services by the Company or any of its Subsidiaries and under which the Company or any of its Subsidiaries generated revenues of $100,000 or more in the twelve months ended December 31, 2007;
(x) prohibits the payment of dividends or distributions in respect to each Material Contract listed in Part 2.9(a) of the capital stock of the Company Disclosure Scheduleor any of its Subsidiaries, such prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company or prohibits the issuance of guarantees by any Subsidiary of the Company; or
(xi) relate to an Affiliate Transaction. Each contract of the type described in clauses (i) through (xi) above is referred to herein as a “Material Contract”
(i) Each Material Contract isto 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 properties or assets is bound (each, a “Company Material Contract”) is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Company, binding each other party thereto, and is in full force and effect and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject except to the extent that enforceability may be limited by the effect of (AX) Laws of general application relating to any applicable bankruptcy, insolvency and insolvency, reorganization, moratorium, or other similar laws affecting the relief enforcement of debtors creditors’ rights generally, and (BY) rules general equitable principles, regardless of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations whether such enforceability is considered in a proceeding at law or defaults which have not hadin equity, and except where the failure to be valid, binding, enforceable and in full force and effect, would reasonably be expected to havenot, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) the Company is not in violation and each of 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, any Material Contractits Subsidiaries, and, to the Knowledge of the Company, no any other party thereto, has performed all obligations required to be performed by it under each Company Material Contract, except where such noncompliance, would not, either individually or in the aggregate, reasonably be expected to have a Material Contract is in violation Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries has received written notice of, the existence of any provisionevent or condition which constitutes, or, after notice or taken or failed to take any act which, with or without notice, lapse of time, time or both, would constitute will constitute, a default on the part of the Company or any of its Subsidiaries under the provisions of any such Material Contract. Since January 1, 2021except where such default would not, either individually or in the Company has not received any written notice oraggregate, reasonably be expected to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract have a Material Contract)Adverse Effect.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 3.7(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set Schedules sets forth in Part 2.15(a) a list of the following Contracts to which a Group Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsis, as of the date of this Agreement to which the Company is Agreement, a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts each Contract required to be disclosed under Part 2.9(aset forth on Section 3.7(a) of the Company Disclosure ScheduleSchedules, together with each Contract entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”):
(i) any Contract relating to Indebtedness of any Group Company of the type described in clauses (a) or group (b) of related Contracts), such definition or to the placing of a Lien (other than a Company Plan, that requires future payments by Permitted Lien) on any material assets or to the Company in excess properties of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeGroup Company;
(ii) any Contract relating to the acquisition under which any Group Company is lessee of or disposition by the Company of holds or operates, in each case, any operating business or assets tangible property (other than pursuant to non-exclusive licenses real property), owned by any other Person, except for any lease or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) agreement under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businessaggregate annual rental payments do not exceed $25,000;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) Contract under which any Contract evidencing or relating to Debt of the Group Company or providing for the creation is lessor of or granting permits any Lien upon third party to hold or operate, in each case, any of the tangible property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in real property), owned or controlled by such Group Company, except for any lease or agreement under which the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractaggregate annual rental payments do not exceed $25,000;
(iv) any Contract creating or purporting to create any (A) material joint venture, profit-sharing, partnership, alliance collaboration, co-promotion, commercialization, research or joint venture development Contract or any sharing of profits or losses by the Company with any Third Party; other similar Contract, or (B) any other Contract that provides for “earnwith respect to material Company Licensed Intellectual Property (other than Off-outs” the-Shelf Software) or other contingent payments by or relating to the licensed Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Products;
(v) any collective bargaining agreement Contract that (A) limits or purports to limit, in any material respect, the freedom of any Group Company to engage or compete in any line of business or with any Person or in any area, (B) contains any exclusivity, “most favored nation” or similar Contract with provisions, obligations or restrictions or (C) contains any trade unionother provisions restricting or purporting to restrict the ability of any Group Company to sell, works council manufacture, develop, commercialize, test or other labor organizationresearch products, directly or indirectly through third parties, or to solicit any potential employee or customer in any material respect;
(vi) any offer letter, employment agreement, independent contractor agreement Contract requiring any future capital commitment or other Contract with capital expenditure (or series of capital expenditures) by any current Group Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in an amount in excess of (A) $100,000 annually250,000 annually or (B) $500,000 over the life of the agreement;
(vii) any Contract that is a settlement, conciliation, or similar agreement with requiring any Governmental Body or that imposes Group Company to guarantee the Liabilities of any monetary or Person (other material obligations upon than the Company or a Subsidiary) or pursuant to which any Governmental Body after Person (other than the date Company or a Subsidiary) has guaranteed the Liabilities of this Agreementa Group Company, in each case in excess of $100,000;
(viii) all joint ventureany Contract under which any Group Company has, partnership (involving sharing directly or indirectly, made or agreed to make any loan, advance, or assignment of profits) payment to any Person or similar Contracts (and not including made any sharing of profits by a Third Party with the Company that are based on sales of goods capital contribution to, or services other than Company Products)investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedules;
(x) any Contract with any Person (A) pursuant to which any Group Company (or HoldCo or any of its Affiliates after the Closing) may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Governmental Body has Group Company grants to any material rights;
(A) Person any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights right of first refusal torefusal, any customerright of first negotiation, vendoroption to purchase, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year option to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract license or any other Person is, or could become, entitled similar rights with respect to any benefit, right material Company Product or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personany material Company Owned Intellectual Property;
(xi) any Contract involving a sales agent(A) governing the terms of the employment, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods engagement or services of any current director, manager, officer, employee, individual independent contractor or other service provider of a Group Company whose annual base salary (or, in the Companycase of an independent contractor, annual base compensation) is in excess of $275,000, or (B) providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any Contract involving commitments for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to make capital expenditures an “earn-out”, contingent purchase price or to Contract, purchase other contingent or sell assets involving $100,000 or moredeferred payment obligation;
(xiii) any leasesettlement, sublease, rental conciliation or occupancy agreement, license similar Contract (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xivA) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) performance of the Company Disclosure Schedule) that contains a change in control clause or similar provision that which would be reasonably be expected likely to be triggered in connection with involve any payments after the consummation date of the Contemplated Transactions and would result in payments by the Company or any successor thereto this Agreement in excess of $100,000, individually (B) with a Governmental Entity or (C) that imposes any material, non-monetary obligations on any Group Company (or HoldCo or any of its Affiliates after the Closing);
(xiv) any Contract set forth or required to be set forth on Section 3.13(c) of the Company Disclosure Schedules;
(xv) any other Contract (other than Employee Benefit Plans, Contracts governing the terms of employment or purchase orders entered into in the aggregateordinary course of business) (A) the performance of which requires either (i) annual payments to or from any Group Company in excess of $150,000 or (ii) aggregate payments to or from any Group Company in excess of $150,000 over the life of the agreement and, in each case, that is not terminable by the applicable Group Company without penalty upon less than thirty (30) days’ prior written notice or (B) which is otherwise a Contract with any Material Supplier; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectCBA.
(bi) With respect to each Each Material Contract listed in Part 2.9(a) of is valid and binding on the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the applicable Group Company and, to the Knowledge of Company’s knowledge, the Companycounterparties thereto, against each party thereto other than the Company, and is in full force and effect and enforceable in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a terms against such Group Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021’s knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the applicable Group Company has not received any written notice orand, to the Knowledge of Company’s knowledge, the Company, other communication regarding any actual or possible violation or counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or material default under, any Material Contract by the applicable Group Company or, to the Company’s knowledge, the counterparties thereto. The Company has made available to Parent CBRG true and complete copies of each such all Material Contract Contracts in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)effect as of the date hereof.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSubsections (i) through (iv) of Section 3.17(a) of the Company Disclosure Schedule lists each Contract list the following types of Contracts, arrangements or understandings (other than the Company Benefits Plans) to which any Group Company Plan is a party (such Contracts as are required to be set forth in Part 2.15(aSection 3.17(a) of the Company Disclosure Schedule being the “Material Contracts”), and none of the Company or any of its Subsidiaries is a party to or bound by any Material Contracts not listed in Section 3.17(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”)::
(i) 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) with a principal amount in excess of US$10,000,000 for each such Contract (or group of related Contracts)individually, other than a Company Plan, that requires future payments by any Indebtedness between or to among any of the Company in excess of $100,000 in any calendar year, including any such Contract (and the Subsidiaries wholly-owned or group of such Contracts that are related) for controlled by the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeCompany;
(ii) all joint venture contracts, strategic cooperation or partnership arrangements (including cooperation or long-term agency contracts entered into at the corporate headquarters level with insurance companies), or other agreements involving a sharing of profits, losses, costs or liabilities by any Contract relating Group Company entered into on or after December 31, 2014 that is material to the acquisition or disposition by business of the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businessand its Subsidiaries taken as a whole;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or all Contracts relating to Debt the purchase or sale of the any shares or securities of, or other equity interests in, any Group Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course any Share Incentive Plans) that has a fair market value or purchase price of Business) or (2) obligating or committing the Company to make any such loans or advancesmore than US$10,000,000; and (D) any currency, commodity or other hedging or swap Contract;and
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract each license agreement that provides for “earn-outs” or other contingent payments by or is material to the Company that have not yet been paid to business of the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade unionGroup Companies, works council or other labor organization;
(vi) any offer lettertaken as a whole, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest its Subsidiaries licenses in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments licenses out Intellectual Property owned by the Company or its Subsidiaries (other than (A) license agreements for commercially available Software and (B) license agreements pursuant to which the Company or its Subsidiaries license Intellectual Property to any successor thereto in excess of $100,000, individually or Person in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) ordinary course of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectbusiness).
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have as has not had, had and would reasonably be expected to have, individually or in the aggregate, not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the relevant Group Companies, as applicable, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, and no Group Company is not in material breach or violation of any provision of, or taken or failed default under, the Material Contract to take any act whichwhich it is a party, with or without notice, lapse of time, or both, would constitute a default under (ii) no Material Contract has been canceled by the provisions of, any Material Contract, and, other party; (iii) to the Knowledge of the Company’s knowledge, no other party to such Material Contract is in material breach or violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Contract; and (iv) no Group Company has made available to Parent true and complete copies received any written claim of each material default under any such Material Contract in all and, to the Company’s knowledge, no fact or event exists that would give rise to any claim of material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a default under any Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) For all purposes of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand under this Agreement, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):Contract” shall mean:
(i) (A) any Contract “material contract” listed as an exhibit to the Company’s annual report on Form 20-F for the year ending December 31, 2014 or (or group B) any “material contract” that is required to be filed by the Company as a material contract (as such term is defined in Item 601(b)(10) of related ContractsRegulation S-K of the SEC), other than a Company Plan, that requires future payments by whether or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeso filed;
(ii) any Contract relating to with a natural person either as an employee or an independent contractor (in each case, under which the acquisition Company or disposition any of the Company Subsidiaries has continuing obligations as of the date hereof) that carries an aggregate annual base salary in excess of $100,000 per annum (excluding Contracts for “at-will” relationships or that are terminable by the Company or the applicable Company Subsidiary at its discretion, by notice of not more than ninety (90) days for a cost of less than $100,000);
(iii) any operating business severance, retention, termination, golden parachute, change-of- control or assets similar agreement with any current or former employee, director or officer of the Company or any of the Company Subsidiaries;
(other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (Biv) any Contract relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any of the Company’s share capital or other securities or any options, warrants or other rights to purchase or otherwise acquire any Company Shares, Preferred Shares, other securities or options, warrants or other rights therefor, except for those Contracts conforming to the standard Contract under the Company Plan;
(v) collective bargaining agreement or similar material Contract with any labor organization, council, union or association;
(vi) Contract with (A) any current or former officer or director of the Company or any Company Subsidiary or any of their immediate family members (other than any Employee Plans), or (B) any Person who (i) to the Knowledge of the Company is a shareholder of the Company, or (ii) is a “substantial shareholder” of the Company (as defined in the ICL), in each case other than employment agreements which are terminable in accordance with their terms without Liability to the Company;
(vii) any customer, client, sales representative, distributor, franchise or supply Contract that involves bookings during the fiscal year 2014 through the first quarter of the fiscal year 2015 in excess of $1,000,000, in each case, other than purchase orders entered into in the ordinary course of business consistent with past practice;
(viii) any Contract providing for Governmental Grants including but not limited from the OCS;
(ix) any Contract with a Governmental Authority;
(x) any Contract to which the Company or any of the Company Subsidiaries is a party that (A) contains any covenant by the Company or any of the Company Subsidiaries that limits the freedom of the Company or any Company Subsidiary to compete in any line of business or with any other Person or in any geographic location, or (B) restricts the development, manufacture, marketing or distribution of the products and services of the Company or any of the Company Subsidiaries, including any Contract with any Person granting such Person the exclusive right in any territory to sell or distribute any product, or other Contract providing “most favored nations” pricing terms for products;
(xi) any Contract entered into after December 31, 2011 (A) relating to the disposition, acquisition or lease (directly or indirectly) by the Company or any of the Company Subsidiaries of a material amount of assets other than in the ordinary course of business consistent with past practice, (B) pursuant to which the Company or any of the Company Subsidiaries will acquire or has acquired any material interest in any other Person or other business enterprise for an amount in excess, in the aggregate, of $3,000,000, or (C) for the acquisition or disposition by the Company of any operating business and such Contract contains any profit sharing arrangements or assets “earn-out” arrangements or other contingent payment obligations, or any indemnification obligations, in each case, under which obligations are continuing;
(other than pursuant to nonxii) any Contract (including any so called take-exclusive licenses or-pay or grants of non-exclusive rightskeepwell agreements) under which the Company or any of the Company Subsidiaries has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any executory covenants or indemnification or other obligations or rights Person (including put or call optionsother than a Company Subsidiary) in excess of $500,000 (in each case other than endorsements for the purpose of collection in the ordinary course of business consistent with past practice); or ;
(Cxiii) any Contract under which the Company have or any indemnification obligationsof the Company Subsidiaries has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any such Contracts entered into of the Company Subsidiaries) in excess of $200,000 (other than extensions of trade credit in the Ordinary Course ordinary course of Businessbusiness consistent with past practice);
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (Bxiv) any Contract evidencing granting any Person a right of first refusal or relating first negotiation or similar right with respect to Debt any sale of the Company or providing for a substantial portion of its shares or assets;
(xv) any Contract imposing “standstill” obligations on the creation of Company or granting any Lien upon any of the property Company Subsidiaries;
(xvi) any Contract that contains a license, lease, distribution, sale, resale or assets incorporation of any Intellectual Property (except for (A) Shrink-Wrap Licenses, and (B) licenses granted by the Company or any of the Company Subsidiaries in the ordinary course of business consistent with the past practice);
(excluding Permitted Liens); (Cxvii) any Contract that relates to the formation, creation, operation, management or control of any legal partnership, strategic alliance or any joint venture entity pursuant to which the Company has an obligation (1contingent or otherwise) relating to any loan make a material investment in or advance material extension of credit to any Person or any material Contract involving the sharing of revenues, profits or losses or proprietary information by the Company or any of the Company Subsidiaries with any unaffiliated third party;
(xviii) any Contract that involves or relates to Indebtedness or under which the Company or any of the Company Subsidiaries has issued any note, bond, debenture or other evidence of Indebtedness to, any Person (other than the Company or any of the Company Subsidiaries) or any other note, bond, debenture or other evidence of Indebtedness of the Company or any of the Company Subsidiaries (other than in favor of the Company or any of the Company Subsidiaries) (whether incurred, assumed, guaranteed or secured by any asset) outside the ordinary course of business consistent with past practice, in each case, for a principal amount in excess of $200,000 (in one or a series of one or more related transactions);
(xix) any lease of personal or real property that involves anticipated expenditures by the Company or any Company Subsidiary of more than $325,000 in any twelve (12) month period;
(xx) any Contract that the Company or any Company Subsidiary is outstanding a party to that, by it terms, does not terminate or is not terminable by the Company or the Company Subsidiary without penalty within six (6) months after the date hereof;
(xxi) any Contract that, together with any related Contracts, provides for capital expenditures in excess of $250,000 for any single project or related series of projects;
(xxii) any Contract with any Material Customer or Material Supplier;
(xxiii) any Contract among any of the Company and the Company Subsidiaries; and
(xxiv) any Contract, or group of related Contracts with a Person (or group of affiliated Persons), the termination or breach of which would or would reasonably be expected to have a Company Material Adverse Effect and is not disclosed pursuant to clauses (i) through (xxiii) above.
(b) Section 3.13(b) of the Company Disclosure Letter contains a list of all Material Contracts (other than any Material Contract contemplated by clause (i)(A) of the definition thereof) to which the Company or any of the Company Subsidiaries is a party or by which it is bound as of the date of this Agreement Agreement. As of the date hereof, true and complete copies of all Material Contracts (other than immaterial advances to employees including all modifications, amendments, supplements, waivers, and consultants in side letters) have been (i) publicly filed with the Ordinary Course of Business) SEC or (2ii) obligating or committing made available to Parent prior to the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;date hereof. There are no Material Contracts that are not in written form.
(ivc) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered Except as detailed in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(fSection 3.13(c) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; andLetter,
(xvii) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of is valid and binding on the Company Disclosure Schedule, (and/or each such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company Subsidiary party thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, enforceable against the Company or each such Company Subsidiary party thereto other than thereto, as the Companycase may be, in accordance with its terms, except that such enforceability (x) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting or relating to creditors’ rights generally, and (y) is subject to general principles of equity, (Aii) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of the Company Subsidiaries that is not in violation of any provision ofa party thereto, 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, any Material Contract, andnor, to the Knowledge of the Company, no any other party to thereto, is in material breach of, or material default under, any such Material Contract is in violation of any provisionContract, and no circumstances exist and no event has occurred that with notice or taken or failed to take any act which, with or without notice, lapse of time, time or both, both would or would be reasonably expected to constitute such a material breach or material default under the provisions of any Material Contract. Since January 1, 2021, thereunder by the Company has not received or any written notice of the Company Subsidiaries, or, to the Knowledge of the Company, any other communication regarding party thereto or are reasonably expected to contravene, in any actual material respect, conflict in any material respect with, or result or give the Company or any of the Company Subsidiaries or any other Person the right to declare a material default or exercise any material remedy under, or to materially accelerate the maturity, performance of or right under, or to cancel, terminate or materially modify, any Material Contract, and (iii) none of the Company and the Company Subsidiaries has received notice of any actual, alleged, possible or potential violation or breach of, or default underfailure to comply with, any Material Contract by the Company. The Company has made available to Parent true and complete copies material term or requirement of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a any Material Contract).
Appears in 1 contract
Sources: Merger Agreement
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set 3.13 sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, a true and that has not expired or been terminated in accordance with its termscomplete list, as of the date hereof, of this Agreement the following Contracts (other than any Benefit Plan) to which the any Purchased Company is a party or by which any of its properties or assets are otherwise bound as of the following categories date hereof (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure ScheduleContracts, whether or not listed in Schedule 3.13, the “Material Contracts”):
(i) Contracts where (A) the performance remaining thereunder involves aggregate consideration payable to or by any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Purchased Company in excess of $100,000 in any calendar year500,000 per annum, including any other than “shrink wrap” or “click through” license agreements for standard software products, and licenses or restricted use provisions that arise out of the purchase of off-the-shelf reagents from suppliers or through catalogs, and (B) such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable cancelable, without penalty premium or penalty, by any Purchased Company on 90 days’ thirty (30) days or shorter less notice;
(ii) any Contract relating to Contracts which contain covenants which restrict or limit the acquisition or disposition by the Company ability of any operating Purchased Company to compete in any line of business or assets (other than pursuant to with any Person or in any geographic area during any time period, or that contain any exclusivity, standstill or non-exclusive licenses or grants solicitation obligation binding on any of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of BusinessPurchased Companies;
(iii) Contracts which relate to Indebtedness and Contracts under which (A) any guaranty, surety Person has directly or performance bond indirectly guaranteed or letter assumed Indebtedness or Liabilities of credit issued any Purchased Company or posted, as applicable, by the Company; (B) any Contract evidencing Purchased Company has directly or indirectly guaranteed or assumed Indebtedness or Liabilities of any other Person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(iv) Contracts under which any Purchased Company has made or will make, directly or indirectly, any advance, loan, extension of credit or capital contribution to, or other investment in, any other Person or Contracts relating to Debt the making of any such advance, loan, extension of credit, capital contribution or other investment;
(v) mortgages, pledges or security agreements or similar Contracts or arrangements constituting a Lien upon the assets or properties of any Purchased Company;
(vi) Contracts for the sale or purchase of personal property having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000, other than sales of Products in the ordinary course of business;
(vii) Contracts pursuant to which a Purchased Company (A) has been granted a license, sublicense or similar right to use the Intellectual Property Rights of a third party that is material to the conduct of the business as currently conducted with respect to the Exploitation of the Products (other than “shrink wrap” or “click through” license agreements for commercially available software products, and licenses or restricted use provisions that arise out of the purchase of off-the-shelf reagents from suppliers or through catalogs) or (B) has granted to a third party the right to use any of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company Intellectual Property Rights (excluding Permitted Liens); (C) any Contract other than (1) relating licenses granted expressly or implicitly by a Purchased Company in connection with the sale, lease or transfer of any inventory of (but not other rights to) any Products to customers in the ordinary course of business, (2) non-exclusive licenses under confidentiality or non-disclosure agreements entered into in the ordinary course of business, (3) material transfer (or other similar research) agreements entered into in the ordinary course of the business that do not transfer ownership of, or exclusively license, any Intellectual Property Rights and (4) clinical trial agreements entered into in the ordinary course of business that do not transfer ownership of, or exclusively license, any Intellectual Property Rights) (collectively, “IP Contracts”);
(viii) Contracts for the production, manufacture, processing, filling, finishing, packaging, labeling, shipping, holding, or supply of any Product or the performance of any clinical trial-related services with respect to any loan Product;
(ix) Contracts for the sale or advance purchase of fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000, other than agreements in which the applicable acquisition or disposition has been consummated and there are not material obligations ongoing;
(x) all Leases;
(xi) Contracts for joint ventures, strategic alliances, partnerships, joint product development, collaborations, co-marketing arrangements or other similar agreements or arrangements;
(xii) Contracts involving the disposition or acquisition of any Person which product line, business or significant portion of the assets, properties or business of the Purchased Companies, or any merger, consolidation or similar business combination transaction;
(xiii) all Government Contracts;
(xiv) Contracts with or involving any Purchased Company on the one hand, and (A) any current or former holder of Equity Interests of any Purchased Company or any Affiliate of any Purchased Company or of any such holder (other than a Purchased Company) or (B) any current or former director, officer or employee of any Purchased Company or any Affiliate (other than a Purchased Company) thereof on the other hand, in each case for any Contract with or involving any such former holder of Equity Interests or former director, officer or employee, only to the extent such Contract (x) is outstanding in effect as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (Dy) imposes any currency, commodity payment or other hedging or swap Contractmaterial obligations on any Purchased Company following the Closing;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(vxv) any collective bargaining agreement agreements or similar Contract Contracts with any trade labor union, works council or other labor organization;
(vixvi) Contracts containing any offer letterprovision requiring any Purchased Company to indemnify any other Person, employment agreementexcluding indemnities contained in Contracts for the purchase, independent contractor agreement sale or other Contract with license of products or services in the ordinary course of business;
(xvii) Contracts (A) that contain an option or grant of any current Company Service Provider pursuant right of first refusal, right of first offer, right of first negotiation or similar right in favor of any Person and (B) in which any of the Purchased Companies have (1) granted (I) development rights, “most favored nation” pricing provisions, or (II) marketing or distribution rights relating to which the Company is any Product or reasonably could be obligated (2) agreed to pay compensation purchase a minimum quantity of goods relating to any Product or has agreed to purchase goods relating to any Product exclusively from a certain party; and
(excluding variable compensationxviii) Contracts involving any resolution or settlement of any Litigation in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation500,000, or similar containing any covenant not to ▇▇▇, concurrent use agreement, settlement agreement, pre-rights declaration or co-existence agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company respect to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectRights.
(b) With respect to each All Material Contract listed Contracts are in Part 2.9(a) of full force and effect, and are legal, valid and binding obligations of, the applicable Purchased Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company party thereto and, to the Knowledge of Company’s Knowledge, each other party thereto, and, in each case, is enforceable against the applicable Purchased Company party thereto and, to the Company’s Knowledge, against each other party thereto other than the Company, in accordance with its terms, the terms thereof (subject to (A) Laws of general application relating to applicable bankruptcy, insolvency insolvency, reorganization, moratorium Laws, or other similar Laws affecting creditors’ rights and general principles of equity affecting the relief availability of debtors and (B) rules of Law governing specific performance, injunctive relief performance and other equitable remedies). Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the No Purchased Company is not in violation of any provision of, material breach 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, terms of any Material Contract, and, to the Knowledge of the Company’s Knowledge, no other party to such any Material Contract is in violation material breach or default thereunder. As of the date hereof, no Purchased Company has received or given written notice of any provisionmaterial breach or default under, or taken or failed to take any act whichtermination of, with or without notice, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received any written notice or, Prior to the Knowledge of the Companydate hereof, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent a true and complete copies copy of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific has been made available by the Company or its Affiliates or Representatives to provisions that make such Contract a Material Contract)Parent or its Affiliates or Representatives.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aAll Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. True and complete copies of all such Contracts have been filed or made available to Parent.
(b) Other than the Contracts described in Section 3.18(a), Section 3.18(b) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set Letter sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effecta complete list, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies copies, of each Contract to which the Company or any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject (other than any of the foregoing solely between the Company and any of the wholly-owned Company Subsidiaries or solely between any wholly-owned Company Subsidiaries), as of the date of this Agreement, that:
(i) relates to (x) the formation, creation, operation, management or control of a partnership, joint venture or similar arrangement (where such partnership, joint venture or similar arrangement involves the formation of, or operation through, a legal entity that is not a wholly-owned Company Subsidiary) or (y) the ownership of any equity interest in any entity or business other than the Company Subsidiaries, in each case that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) contains any provision that limits or restricts (or purports to limit or restrict) the ability of the Company or any of the Company Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, in each case other than the certificate of incorporation, bylaws or other charter or organizational or governing documents of the Company or any Company Subsidiary;
(iii) relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or any Company Subsidiary in an amount in excess of $25,000,000 (except for such Indebtedness between the Company and any of the wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries, guarantees by the Company of Indebtedness of any of the wholly-owned Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or any other wholly-owned Company Subsidiary);
(iv) relates to derivative instruments, including swaps, caps, floors and option agreements, whether or not such obligations constitute Indebtedness, with a net present value as of March 31, 2017 greater than $2,000,000;
(v) grants any rights of first refusal, rights of first negotiation or other similar rights to any person with respect to the sale of any ownership interest of the Company or the Company Subsidiaries or any material business or assets of the Company and the Company Subsidiaries, taken as a whole;
(vi) (A) would materially restrict or affect the ability of Parent or its Subsidiaries (including the Surviving Corporation and its Subsidiaries) following the Effective Time to compete in any line of business or (B) contains “most favored nation,” exclusivity or similar covenants that, in each case, are material to or would materially restrict or affect the future business activity of Parent or its Subsidiaries (including the Surviving Corporation and its Subsidiaries) following the Effective Time;
(vii) obligates the Company or any Company Subsidiary to make any (or any series of related) capital commitment or capital expenditure in excess of $5,000,000 individually after the date hereof through December 31, 2017 or $5,000,000 individually thereafter;
(viii) (A) relates to any completed acquisition, divestiture, merger or similar business combination transaction (in each case involving the acquisition, sale or disposition of any person, division, a substantial portion of the assets of any person, business or equity securities) and contains representations, covenants, “earn-out” obligations, indemnities or other obligations that remain in effect and that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (B) relates to any pending acquisition, divestiture, merger or similar business combination transaction (in each case involving the acquisition, sale or disposition of any person, division, a substantial portion of the assets of any person, business or equity securities), in each case where the consideration is in excess of $1,000,000, or (C) gives any person the right to acquire any material equity interests, stock, assets or businesses of the Company or the Company Subsidiaries after the date hereof;
(ix) is a Contract that is between the Company or any of the Company Subsidiaries, on the one hand, and any director or officer of the Company or the Company Subsidiaries or any person beneficially owning 5% or more of the outstanding Shares, on the other hand (except for any Company Benefit Plan);
(x) is a Union Contract;
(xi) is a Contract with any Significant Customer for the sale of goods or services by the Company or any Company Subsidiary or is a Contract with any Significant Supplier for the purchase of services, materials, supplies or equipment by the Company or any Company Subsidiary (other than any non-material purchase or sale order, including any such purchase or sale order based on quoted or pre-established pricing or that is processed in the ordinary course of business through an electronic transaction, or other immaterial Contract);
(xii) is a settlement or similar agreement with any Governmental Entity or order or consent of a Governmental Entity to which the Company or any of the Company Subsidiaries is subject involving future performance by the Company or any of the Company Subsidiaries which is material to the Company and the Company Subsidiaries, taken as a whole; or
(xiii) is a mortgage, pledge, security agreement, deed of trust or other Contract in respect of any indebtedness for borrowed money granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or any Company Subsidiary. Each Contract described in Section 3.18(a) or Section 3.18(b) (whether or not listed on Section 3.18(a) or Section 3.18(b) of the Company Disclosure Letter) is referred to in this Agreement as a “Company Material Contract.”
(c) Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any Company Subsidiary, where such breach or default, individually or together with other such breaches or defaults, would reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, as of the date hereof, no other party to any Company Material Contract is in all material respects (including all modificationsbreach of or default under the terms of any Company Material Contract where such breach or default, amendments individually or together with other such breaches or defaults, would reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement, each Company Material Contract is a valid and supplements binding obligation of the Company or a Company Subsidiary that is a party thereto and, to the knowledge of the Company, is in full force and waivers thereundereffect, but except for such failures as, individually or in the aggregate, would not including purchase orders reasonably be expected to have a Company Material Adverse Effect, subject to the Bankruptcy and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Equity Exception.
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Material Contracts. (a) Part 2.9(aExcept for this Agreement, the Contracts listed in Section 3.16(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of and the Contracts filed as exhibits to the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance SEC Reports filed with its terms, as of the SEC prior to the date of this Agreement to which Agreement, none of the Company or any of its Subsidiaries is a party to or bound by which any of its properties or assets are otherwise bound of the following categories Contract (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleeach, the a “Material ContractsContract”):
(i) any Contract (or group that is required to be filed by the Company pursuant to Item 4 of related Contracts), other than a Company Plan, that requires future payments by or the Instructions to Exhibits to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty Company’s most recently filed annual report on 90 days’ or shorter noticeForm 20-F;
(ii) any Contract relating to the acquisition any credit, loan or disposition facility arrangement, guarantee or other security arrangement, or Indebtedness (whether or not incurred, assumed, guaranteed or secured by the Company any asset of any operating business or assets (other than pursuant to non-exclusive licenses or grants Group Company) in excess of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of BusinessUS$1,000,000;
(iii) that is a joint venture contract, a strategic cooperation or partnership arrangement (including a cooperation or long-term agency contract entered into at the corporate headquarters level with insurance companies), or other agreement involving a sharing of profits, losses, costs or liabilities by any guarantyGroup Company, surety or performance bond or letter of credit issued or postedin each case, as applicable, by that is material to the Company; (B) any Contract evidencing or relating to Debt business of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding Group Companies taken as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contracta whole;
(iv) relating to the purchase or sale of any Contract creating shares or purporting to create any partnershipsecurities of, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding equity interests in, any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Group Company;
(v) that limits, or purports to limit, the ability of any collective bargaining agreement Group Company to compete in any line of business or similar Contract with any trade union, works council person or other labor organizationentity or in any geographic area or during any period of time;
(vi) involving any offer letterdirectors, employment agreement, independent contractor agreement officers or other Contract with any current Company Service Provider pursuant to which shareholders of the Company is holding more than 5% of the share capital of the Company, or reasonably could be obligated to pay compensation any of their respective Affiliates (excluding variable compensationother than the Group Companies) in excess of $100,000 annually;or immediate family members; or
(vii) that provides for any Contract that is a settlement, conciliation, change of control or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectpayments.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and as would reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such (i) each Material Contract is a legal, valid and binding agreement, and no Group Company is in material breach or violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract, subject to the Bankruptcy and Equity Exception; (ii) to the Company’s Knowledge, no Material Contract has been canceled by the other party; (iii) to the Company’s Knowledge, no other party is in material breach or violation of, or default under, any Material Contract; (iv) to the Company’s Knowledge, no Group Company has received any claim of material default under any such Material Contract and no fact or event exists that could give rise to any claim of material default under any Material Contract; and (v) neither the execution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent true and complete copies of each such all Material Contract in all material respects (Contracts, including all modifications, any amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)thereto.
Appears in 1 contract
Sources: Merger Agreement (Kongzhong Corp)
Material Contracts. (a) Part 2.9(aSection 4.17(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, a true and that has not expired or been terminated in accordance with its termscomplete list, as of the date of this Agreement Agreement, of the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries (or any of their respective properties or assets are otherwise bound assets) is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the following categories (such Contracts SEC) or any Contract that is of the type that would be required to be disclosed under Part 2.9(aItem 404(a) of Regulation S-K promulgated under the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeExchange Act;
(ii) any Contract relating to that contains covenants that limit the acquisition or disposition by ability of the Company of or its Subsidiaries: (A) to compete in any operating business or assets with any person or in any geographic area (including any non-compete provisions) or (B) to enforce in any material respect its rights under (x) any Material Contract or (y) under applicable Law, including any material covenant not to ▇▇▇ (other than pursuant any covenant not to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts ▇▇▇ entered into in connection with the Ordinary Course settlement of Businesslitigation restricting the right of the Company or of any of its Subsidiaries to bring suit with respect to claims released thereunder for events occurring prior to the date of such release), except, in each case with respect to clauses (A) and (B), for any such Contract that may be cancelled without penalty or other liability of the Company or any of its Affiliates upon notice of ninety (90) days or less;
(iii) provide for or govern the formation, creation, operation, management or control of any guarantypartnership, surety strategic alliance, joint venture or performance bond similar arrangement involving the sharing of profits or letter losses (in each case, except for any Subsidiary and any Practice Entity);
(iv) provide for the license by or to the Company or any of credit issued or postedits Subsidiaries of any Intellectual Property that (A) is material to the business of the Company and its Subsidiaries, taken as applicable, a whole (other than licenses by the Company; Company or any of its Subsidiaries that are ancillary to a sale of services to customers in the ordinary course of business and licenses by the Company or any of its Subsidiaries to another Subsidiary or any Practice Entity) or (B) materially limit the Company’s or its Subsidiaries’ ability to use any Company Intellectual Property;
(v) with any Company Associate or any of their immediate family members, in each case, other than a Company Stock Plan;
(vi) involve any settlement, conciliation or similar agreement (A) that is with any Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries is obligated after the date of this Agreement to pay consideration to a Governmental Entity;
(vii) any loan and credit agreement, note, debenture, bond, indenture and other similar Contract evidencing or relating pursuant to Debt which any Indebtedness for borrowed money of the Company or providing for the creation of or granting any Lien upon any of its Subsidiaries may be incurred or is outstanding, in each case, in an amount in excess of $15,000,000 individually and $50,000,000 in the property aggregate;
(viii) (A) were entered into on or after December 31, 2015, and/or (B) have not yet been consummated, and involve the acquisition or Disposition, directly or indirectly (by merger or otherwise), of a business or all, or substantially all, capital stock or other equity interests of a person or all, or substantially all, material assets or properties of a person other than any such acquisition for consideration (including any “earnouts” and contingent payments) that does not exceed $50,000,000;
(ix) contain a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of a third party;
(x) expressly prohibit the payment of dividends or distributions in respect of, or the pledging of, any equity interest of, or the issuance of guarantees by, the Company or any of its Subsidiaries; or
(xi) is a collective bargaining agreement, labor union contract, trade union agreement or works council agreement (each, a “Collective Bargaining Agreement”). Each Contract of the type described in clauses (i) through (xi) above (or set forth in Section 4.17(a) of the Company Disclosure Schedule or filed as an exhibit to the Company SEC Documents (excluding Permitted Liens); (C) other than any such Contract (1) relating filed as an exhibit to any loan or advance to any Person which is outstanding the Company SEC Documents that, as of the date hereof, has expired pursuant to its terms or has been disclosed prior to the date hereof in the Company SEC Documents (without giving effect to the date limitation in the definition thereof) as having been terminated)), other than a Company Stock Plan, is referred to herein as a “Company Material Contract.” The Company has made available to Acquiror prior to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company unwritten Contractual arrangement with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of BusinessAssociate);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have as has not had, had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any Subsidiary of the Company is not in violation breach of 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, terms of any Company Material Contract, Contract and, to the Knowledge knowledge of the Company, no other party to such any Company Material Contract is in violation breach of or default under the terms of any provisionCompany Material Contract, (ii) no event has occurred or taken not occurred through the Company’s or failed any of its Subsidiaries’ action or inaction or, to take the knowledge of the Company, through the action or inaction of any act whichthird party, that with or without notice, notice or lapse of time, time or both, both would constitute a breach of or default under the provisions terms of any Company Material Contract. Since January 1, 2021, (iii) each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect (in each case, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity), (iv) there are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and (v) neither the Company nor any of its Subsidiaries has not received any written notice orof the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the Knowledge knowledge of the Company, other communication regarding is any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available such party threatening to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)do so.
Appears in 1 contract
Sources: Merger Agreement (Vca Inc)
Material Contracts. (a) Part 2.9(aSchedule 2.12(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth purchase orders) in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, effect as of the date of this Agreement Date to which the any Acquired Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, ) that requires require future payments by or to the Company Acquired Companies in excess of $100,000 500,000 in any calendar year, including any such Contract (or group of such Contracts that are relatedrelated Contracts) for the purchase, lease purchase or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of servicesservices (except for any Company Plan, offer letters or management, employment, service, consulting, severance, independent contractor or other similar type of Contracts ) in each case to the extent the Contract that is not terminable without penalty on 90 days’ or shorter notice;
(ii) (A) any Contract relating entered into pursuant to the acquisition or disposition by the which any Acquired Company of acquired any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsmaterial assets, in each case other than any such Contracts entered into in the Ordinary Course ordinary course of Businessbusiness (including pursuant to financing agreements, leases and commercial agreements with suppliers and/or with respect to the sale, distribution or licensing of products by the Acquired Companies);
(iiiA) any monetary guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the any Acquired Company; (B) any Contract evidencing Indebtedness of any Acquired Company (excluding any unpaid severance or relating to Debt deferred compensation obligations of the Company any Acquired Company) or providing for the creation of or granting any Lien upon any of the property or assets of the any Acquired Company (excluding Permitted LiensEncumbrances); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (DC) any currency, commodity or other hedging or swap Contract;
(iv) (A) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the any Acquired Company with any Third Partythird party; or (B) any Contract that provides for “earn-outs” or other similar contingent payments by or to any Acquired Company for the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course deferred purchase price of Business)property or services;
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body Entity has any material rights;
(vi) (A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, which have, or would have or purport to have have, the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity any Acquired Company from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth nondisclosure agreements entered into (1) in the ordinary course of business consistent with past practice or (2) in connection with this Agreement or the agreements ancillary heretoAgreement; (B) any Contract in which the any Acquired Company has granted “exclusivity” or that requires the any Acquired Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticePerson; or (DC) any Contract containing a “most-favored-nation,” ”, “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to must be at least as favorable to such party as those offered to another Person;
(xivii) any Contract with a Top Vendor or involving a sales agent, representative, distributor, resellerpartner or reseller pursuant to which the Acquired Companies received payments in excess of $500,000 in the aggregate during the twelve months ended September 30, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company2021;
(xiiviii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or moremore individually in any calendar year;
(ix) any Real Property Lease;
(x) any Inbound License and any Outbound License, and any IP Agreements;
(xi) any management, employment, service, consulting, severance, independent contractor or other similar type of Contract that provides for annual payments in excess of $100,000, except any such Contract that is terminable on 90 days’ or shorter notice without the payment of any severance;
(xii) any Contract providing for the indemnification of any current or former director, officer or employee of any Acquired Company;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under Contract which the Company is the lessee or lessor of, or owns, uses or operates any leasehold provides for payments or other interest in benefits that are conditioned on or result from a change of control of any real or personal property;Acquired Company; and
(xiv) any power of attorney granted by any Acquired Company that is currently in effect, except for any power of attorney granted to a professional services firm for the Company Intellectual Property Agreements; and
(xv) purpose of filing any Contract (excluding any Contract disclosed Tax Returns or foreign intellectual property filings, in Part 2.14(f) each case, on behalf of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectAcquired Company.
(b) With respect to each Material Contract listed in Part 2.9(aSchedule 2.12(a): (i) of the Company Disclosure Schedule, such Material Contract is, is with respect to each party thereto other than the Knowledge of the applicable Acquired Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each such party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, ; and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the (ii) no Acquired Company is not in violation material breach or material default of any provision of, or taken or failed to take any act whichsuch Material Contract or, with the giving of notice or the giving of notice and passage of time without noticea cure would be, lapse in material breach or material default of time, or both, would constitute a default under the provisions of, any such Material Contract, and, and to the Knowledge of the Company’s Knowledge, no other party to such Material Contract is in violation material breach or material default of any provision, 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 any such Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent the Buyer or its counsel a true and complete copies copy of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Stock Purchase Agreement (CURO Group Holdings Corp.)
Material Contracts. (ai) Part 2.9(aExcept as listed in Section 3.3(k) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsLetter, as of the date of this Agreement to which Agreement, neither the Company nor any of its assets, businesses, or operations is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories affected by, or receives benefits under, (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(iA) any Contract (or group of related Contracts)employment, other than a Company Planseverance, that requires future payments by or to the Company in excess of $100,000 in any calendar yeartermination, including any such Contract (or group of such Contracts that are related) for the purchaseconsulting, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal propertyretention, or for the provision or receipt of servicesretirement Contract, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition borrowing of money by the Company or disposition the guarantee by the Company of any operating business or assets such obligation (other than pursuant Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances or Contracts pertaining to non-exclusive licenses or grants trade payables incurred in the ordinary course of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call optionsbusiness consistent with past practice); or , (C) any Contract under which containing covenants that limit the ability of the Company or any of its Affiliates (including, after the Effective Time, Seacoast or any of its Affiliates) to engage in any line of business or to compete in any line of business or with any Person, or that involve any restriction of the geographic area in which, or method by which, the Company or Affiliates (including, after the Effective Time, Seacoast or any of its Affiliates) may carry on its business, (D) any Contract or series of related Contracts for the purchase of materials, supplies, goods, services, equipment or other assets that (x) provides for or is reasonably likely to require annual payments by the Company of $25,000 or more or (y) have any indemnification obligations, other than any such Contracts a term exceeding 12 months in duration (except those entered into in the Ordinary Course ordinary course of Business;
business with respect to loans, lines of credit, letters of credit, depositor agreements, certificates of deposit and similar routine banking activities and equipment maintenance agreements that are not material), (iiiE) any guarantyContract involving Intellectual Property (excluding generally commercially available “off the shelf” software programs licensed pursuant to “shrink wrap” or “click and accept” licenses), surety (F) any Contract relating to the provision of data processing, network communications or performance bond other material technical services to or letter of credit issued or posted, as applicable, by the Company; , (BG) any Contract evidencing to which any Affiliate, officer, director, employee or relating to Debt consultant of the Company is a party or providing for beneficiary (except with respect to loans to, or deposits from, directors, officers and employees entered into in the creation ordinary course of or granting any Lien upon any of the property or assets of the Company business consistent with past practice and in accordance with all applicable regulatory requirements with respect to it), (excluding Permitted Liens); (CH) any Contract (1) relating with respect to any loan the formation, creation, operation, management or advance to any Person which is outstanding as control of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencya joint venture, commodity partnership, limited liability company or other hedging similar arrangement or swap Contract;
agreement, (ivI) any Contract creating that provides any rights to investors in the Company, including registration, preemptive or purporting anti-dilution rights or rights to create any partnershipdesignate members of or observers to the Company’s Board of Directors, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (BJ) any Contract that provides for “earn-outs” or other contingent potential material indemnification payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (BK) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is amendment thereto that would be required to be at least filed as favorable an exhibit to such party any SEC Report (as those offered to another Person;
(xidescribed in Items 601(b)(4) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale and 601(b)(10) of goods or services of the Company;
(xiiRegulation S-K) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which if the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected were required to be triggered in connection file such with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) SEC. With respect to each Material of its Contracts that is described above: (w) the Contract listed in Part 2.9(a) is valid and binding on the Company thereto and, to the Knowledge of the Company, each other party thereto and is in full force and effect, enforceable in accordance with its terms (except in all cases as such enforceability may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship and other Laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or the rights of creditors of insured depository institutions and (2) general equitable principles and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought); (x) the Company Disclosure Schedule, is not in Default thereunder; (y) the Company has not repudiated or waived any material provision of any such Material Contract; and (z) no other party to any such Contract is, to the Knowledge of the Company, binding and enforceable against in Default in any material respect or has repudiated or waived any material provision of any such Contract. No Consent is required by any such Contract for the execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated hereby or thereby. Except as set forth in Section 3.3(k)(i)(B) of the Company andDisclosure Letter, to the Knowledge all indebtedness for money borrowed of the CompanyCompany is pre-payable without penalty or premium.
(ii) All interest rate swaps, against caps, floors, collars, option agreements, futures, and forward contracts, and other similar risk management arrangements, contracts or agreements, whether entered into for its own account or its customers, were entered into (A) in the ordinary course of business consistent with past practice and in accordance with prudent business practices and all applicable Laws and (B) with counterparties believed to be financially responsible, and each party thereto other than the Company, of them is enforceable in accordance with its termsterms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to (A) Laws the discretion of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults court before which have not hadany proceeding may be brought), and would reasonably be expected is in full force and effect. Neither the Company, nor to haveits Knowledge, any other party thereto, is in Default of any of its obligations under any such agreement or arrangement. The Company Financial Statements disclose the value of such agreements and arrangements on a ▇▇▇▇-to-market basis in accordance with GAAP and, since January 1, 2016, there has not been a change in such value that, individually or in the aggregate, has resulted in a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of Effect on the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Material Contracts. (a) Part 2.9(a) The Company has heretofore made available to Parent correct and complete copies in all material respects of the Company Disclosure Schedule lists each Contract all Contracts (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement supplements thereto and all side letters to which the Company or any Company Subsidiary is a party affecting the obligations of any party thereunder) to which the Company or any Company Subsidiary is a party or by which any of its properties or assets are otherwise bound of that are material to the following categories (such Contracts required to be disclosed under Part 2.9(a) business, properties or assets of the Company Disclosure Scheduleand its subsidiaries taken as a whole, the “Material Contracts”):
including, without limitation, all: (i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or agreements relating to the Company in excess development, production and distribution of $100,000 in any calendar year, including any such Contract television programming (or group of such Contracts that are related"Distribution Agreements") for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
and all Program Licenses (as defined below); (ii) any Contract relating to the acquisition partnership or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights)joint venture agreements; (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing agreements for the creation acquisition, sale or lease of or granting any Lien upon any of the property material properties or assets of the Company (excluding Permitted Liens)by merger, purchase or sale of assets or stock or otherwise) entered into since August 31, 1996; (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating contracts or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company agreements with any Third Party; or (B) any Contract that provides for “earn-outs” or Governmental Entity other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers than those entered in into in the Ordinary Course ordinary course of Business);
business consistent with past practice; (v) any collective bargaining agreement loan or similar Contract with any trade unioncredit agreements, works council mortgages, indentures or other labor organization;
agreements or instruments evidencing indebtedness of the Company or any Company Subsidiary for borrowed money or any such agreement pursuant to which indebtedness for borrowed money may be incurred; (vi) agreements that purport to limit, curtail or restrict in any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which material respect the ability of the Company is or reasonably could be obligated any Company Subsidiaries to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity compete in any geographic area or other jurisdiction, line of business other than any such covenant set forth those entered into in this Agreement the ordinary course of business consistent with past practice under Program Licenses or the agreements ancillary heretoDistribution Agreements; (Bvii) any Contract in which the Company has granted “exclusivity” contracts or agreements that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is would be required to be at least filed as favorable an exhibit to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments Form 10-K filed by the Company or with the SEC on the date hereof; and (viii) commitments and agreements to enter into any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule foregoing (including Company Intellectual Property Agreements) thatcollectively, if terminated, or if such Contract expired without being renewed, would have a Company the "Material Adverse EffectContracts").
(b) With respect to each Each of the Material Contract listed in Part 2.9(a) Contracts constitutes the valid and legally binding obligation of the Company Disclosure Scheduleor Company Subsidiaries, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its termsterms (except as enforceability may be limited by applicable bankruptcy, subject to (A) insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general application applicability relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadaffecting creditors' rights or by general equity principles), and would reasonably is in full force and effect, except to the extent the failure to be expected to haveso valid, binding or enforceable, individually or in the aggregate, would not and would not reasonably be expected to have a Company Material Adverse Effect, . There is no default under any Material Contract either by the Company is not in violation of or, to the Company's knowledge, by 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, any Material Contractother party thereto, and, to the Knowledge of the Company's knowledge, no other party to such Material Contract is in violation of any provision, or taken or failed to take any act which, event has occurred that with or without notice, the lapse of time, time or both, the giving of notice or both would constitute a default under thereunder by the provisions Company or, to the Company's knowledge, any other party, except any such default or defaults that individually or in the aggregate would not and would not reasonably be expected to have a Company Material Adverse Effect. Section 3.20(b) of the Company Disclosure Letter sets forth a list of each of the Material Distribution Agreements and the Distribution Agreement pursuant to which the Company acquired "Hollywood Squares" from Orion Pictures Corporation (and its successor-in-interest to such agreement, Metro-▇▇▇▇▇▇▇-▇▇▇▇▇, Inc.), together with a list of each modification, supplement or other amendment to any such Distribution Agreement that materially affects the obligations of any Material Contractparty to any such Distribution Agreement. Since January 1, 2021As of the date hereof, the Company has not received any no written notice or, to the Knowledge knowledge of Company senior management listed in Section 3.20(b) of the CompanyCompany Disclosure Letter, other communication regarding oral notice from any actual party to a Material Distribution Agreement that, solely as a result of or possible violation in connection with the execution of this Agreement or breach ofthe consummation of the Merger, (i) such party intends to terminate such Material Distribution Agreement, (ii) such party has a right to terminate such Material Distribution Agreement or default under(iii) such party's consent is required.
(c) Attached to Section 3.20 of the Company Disclosure Letter is a schedule dated March 22, any Material Contract 1999 (the "Program License Schedule") that has been prepared and maintained by the Company. The Company has made available to Parent true in the ordinary course of business and complete copies of each such Material Contract in all material respects that lists certain information regarding Program Licenses (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).as defined below) pursuant
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan Except as set forth in Part 2.15(aon Schedule 3.6(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”) and except for this Agreement, none of the Group Companies is a party to or bound by any of the following Contracts (to the extent any such contract remains in effect):
(i) Contract for (A) the employment of any Contract (manager, officer, employee, individual consultant or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company individual independent contractor providing for an annual base salary in excess of $100,000 in any calendar 200,000 per year, including except for any such Contract that can be terminated by any Group Company for any or no reason without incurring severance obligations or (or group B) the payment of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products any cash or other personal property, compensation or for benefits as a result of the provision execution of this Agreement or receipt the consummation of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticetransactions contemplated hereby;
(ii) Contract under which a Group Company is lessee of or holds or operates any Contract relating to the acquisition or disposition by the Company of any operating business or assets tangible property (other than pursuant real property), owned by any other Person, except for any such lease or agreement under which the aggregate annual rental payments do not exceed $25,000;
(iii) Contract with respect to any material Intellectual Property Rights, including license agreements, development agreements, coexistence agreements and agreements containing covenants not to sue (excluding, in each case, (A) licenses for commercial off the shelf Software licensed from a third party with a replacement cost or aggregate annual fee of no more than $100,000, (B) non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to Intellectual Property Rights granted in the acquisition or disposition by the Company Ordinary Course of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or Business, and (C) any Contract under which Contracts between any Group Company and its employees on any of the Company have any indemnification obligations, other than Group Company’s standard form or any such Contracts that are substantially the same, in all material respects, to such standard form);
(iv) partnership agreements and joint venture agreements;
(v) Contract restricting, limiting or prohibiting any of the Group Companies from freely engaging in any business, excluding customary non-disclosure or confidentiality agreements or any agreement, contract or commitment entered into in the Ordinary Course of Business;
(iiivi) Contract that contains any guaranty“most favored nation”, surety exclusivity, preferred provider or performance bond minimum commitment terms;
(vii) collective bargaining agreement or letter any other Contract with any labor union, works council, or other labor organization, employee association or other bargaining representative of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt employees of the Company Group Companies (each a “Collective Bargaining Agreement”);
(viii) Real Property Leases;
(ix) Contract with a Material Customer or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (Material Vendor, in each case, other than immaterial advances to employees and consultants purchase orders in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(ivx) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another PersonRelated Party;
(xi) Contract relating to any Contract involving Funded Indebtedness or the mortgaging, pledging or otherwise placing of a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor Lien on any asset or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale group of goods or services assets of the CompanyGroup Companies;
(xii) surety bond or performance bond or similar instrument or indemnity or other agreement governing any Contract involving commitments to make capital expenditures surety bond or to Contract, purchase performance bond or sell assets involving $100,000 or moresimilar instrument;
(xiii) any leaseContract which involves the sale, subleaseissuance, rental repurchase or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which registration of the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertyShares;
(xiv) Contract granting any Person an option or a first refusal or similar preferential right to purchase or acquire any material asset of any of the Company Intellectual Property Agreements; andGroup Companies;
(xv) settlement Contract with respect to any Contract Action (excluding A) with any Contract disclosed in Part 2.14(fGovernmental Entity or (B) where any of the Company Disclosure Schedule) that contains a change in control clause Group Companies has any material Liability after the Closing pursuant to such settlement Contract or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregateProceeding; andor
(xvi) commitment or arrangement to enter into any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectforegoing.
(b) With respect to Except as set forth on Schedule 3.6(b), each Material Contract listed in Part 2.9(a) of is valid and binding on the Group Company Disclosure Schedule, such Material Contract is, which is a party to the Knowledge of the Company, binding it and enforceable in accordance with its terms against the such Group Company and, to the Knowledge Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Except as set forth on Schedule 3.6(b), none of the CompanyGroup Companies and, against each party thereto other than to the Company’s knowledge, no other party thereto, is in accordance default or breach in any material respect of its obligations under any Material Contract. No event has occurred which (with its terms, subject to (Athe passage of time or the giving or notice or both) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or result in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default or breach by any Group Company under the provisions of, any Material Contract, and, to the Knowledge of the Company, no . No Group Company has received any written notice that any other party to such a Material Contract is in violation of any provisionintends not to renew, or taken to breach, cancel, terminate or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under renegotiate the provisions existing terms of any Material Contract. Since January 1No Group Company has, 2021within the twelve (12) months prior to the Closing, the Company has not received any written notice or, from any other party to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by that such other party intends to increase the Companycost to such Group Company for the goods, services or rights delivered or provided to such Group Company other than as provided for in such Material Contract. The Company has made available to Parent true Buyer a true, correct and complete copies copy of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan Except for this Agreement, or as set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) Section 4.14 of the Company Disclosure Schedule, as of the “Material Contracts”):date hereof, neither the Company nor any Subsidiary of the Company is a party to any contract, arrangement, commitment or understanding currently in effect or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound:
(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 a Contract with the ten (10) largest customers of the Company and its Subsidiaries (determined on the basis of amounts invoiced by the Company and its Subsidiaries for the calendar year ending December 31, 2017),
(iii) containing a covenant limiting in any Contract (material respect the ability of the Company or group any Subsidiary of related Contracts), other than a the Company Plan, that requires future payments by to compete or engage in any line of business or to compete with any Person in any geographic area, or that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world,
(iv) relating to or evidencing Indebtedness or any guarantee for the benefit of a Third Party of Indebtedness by the Company or any Subsidiary of the Company in excess of $100,000 250,000.
(v) that is a license to Company Intellectual Property Assets other than non-exclusive licenses granted to customers in the ordinary course of business,
(vi) that is a license to the Company or any calendar yearof its Subsidiaries of any Intellectual Property Assets of another Person (excluding licenses for unmodified, including commercially available, off-the-shelf Software with a replacement cost or annual license fee of less than $100,000),
(vii) that is for any such Contract (or group of such Contracts that are related) for the purchasecollaboration, lease or sale of real propertyjoint development, raw materials, goods, commodities, utilities, equipment, supplies, products a strategic alliance or other personal propertysimilar arrangement,
(viii) to which any of the Company’s or its Subsidiaries’ directors or officers is a party (other than Company Employee Plans and any award agreements thereunder or employment agreements entered into between such individuals and the Company’s non-U.S. Subsidiaries in the ordinary course of business solely as to comply with Applicable Law or custom),
(ix) that relates to the formation, creation, governance or control of, or for the provision economic rights or receipt obligations of servicesthe Company or any of its Subsidiaries in, any joint venture, limited liability company, partnership or other similar arrangement (excluding organizational documents of the Company’s Subsidiaries), in each case case, that is material to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;Company and its Subsidiaries, taken as a whole.
(iix) any Contract relating that relates to the acquisition or disposition by the Company of any operating business business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) that was entered into after January 1, 2016 and (other than a) pursuant to nonwhich any earn-exclusive licenses out or grants of non-exclusive rights); deferred or contingent payment obligations remain outstanding or (Bb) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or a claim for indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of may still be made against the Company or providing for the creation of or granting any Lien upon any of its Subsidiaries for breaches of general representations and warranties within the property or assets of the Company general survival period set forth therein (excluding Permitted Liensclaims based on willful misconduct, intentional misrepresentation or fraud); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;or
(ivxi) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any is a collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body labor organization. The Company has not received any written notice from any Person that such Person intends to terminate, or that imposes not renew, any monetary Material Contract. Each contract, arrangement, commitment or other material obligations upon understanding of the Company to any Governmental Body after the date of type described above in this Agreement;
(viii) all joint ventureSection 4.14, partnership (involving sharing of profits) whether or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) Section 4.14 of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have is referred to herein as a Company “Material Adverse EffectContract.
(b) With respect to each Material Contract listed in Part 2.9(a) ” All of the Material Contracts are valid and binding on the Company Disclosure Schedule, such Material Contract is, to the Knowledge or any Subsidiary of the Company, binding and enforceable against as the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contractcase may be, and, to the Knowledge of the Company, no each other party thereto, as applicable, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity. As of the date hereof, neither the Company nor any Subsidiary of the Company has, and to such Material Contract is in violation the Knowledge of the Company, none of the other parties thereto have, violated any provisionprovision of, or taken committed or failed to take perform any act whichact, and no event or condition exists, which (with or without notice, lapse of time, time or both, ) would constitute a default under the provisions of any Material Contract. Since January 1, 2021except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to be material to the business of the Company and its Subsidiaries, taken as a whole, and, as of the date hereof, neither the Company nor any Subsidiary of the Company has not received any written notice or, to of any of the foregoing. To the Knowledge of the Company, other communication regarding any actual no Person is challenging the validity or possible violation or breach of, or default under, enforceability of any Material Contract by Contract, and neither the Company. The Company nor any Subsidiary of the Company has made available to Parent true and complete copies received written notice of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)any of the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (RMG Networks Holding Corp)
Material Contracts. (a) Part 2.9(aSchedule 3.15(a) of lists the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following Contracts to which the Company or any Company Subsidiary is a party or by which any of its properties or assets are otherwise may be bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleeach, a “Material Contract” and, collectively, the “Material Contracts”):
(i) notes, debentures, guarantees, loans, credit or financing agreements or instruments, or other Contracts for Indebtedness, including any Contract (agreements or group commitments for future loans, credit or financing, in each case in excess of related Contracts)$500,000, other than any of the foregoing relating to any intercompany indebtedness;
(ii) leases, rental or occupancy agreements, installment and conditional sale agreements, and other Contracts affecting the ownership of, leasing of, title to or other interest in, any tangible personal property or real property involving individual annual payments in excess of $40,000;
(iii) material joint venture, partnership or limited liability company agreements involving a Company Planshare of profits, that requires future losses, costs or liabilities;
(iv) any license agreement or other Contract relating to Intellectual Property involving individual annual payments by or to the Company in excess of $100,000 in and any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract consulting agreement relating to the acquisition research and development or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)outsourced technology services;
(v) Contracts between the Company or a Company Subsidiary, on the one hand, and Seller or any collective bargaining agreement director, officer or similar Contract with Affiliate of Seller, the Company or any trade unionCompany Subsidiary, works council on the other hand (other than (i) employment arrangements and (ii) customary non-disclosure and assignment of confidential or other labor organizationproprietary information agreements, in each case, entered into in the ordinary course of business);
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to all Contracts under which the Company or a Company Subsidiary is or reasonably could be may become obligated to pay compensation any amount in respect of deferred or conditional purchase price (excluding variable compensationother than ordinary trade terms), indemnification obligations, purchase price adjustment or otherwise in connection with any (x) acquisition or disposition of all or substantially all of the assets or securities constituting a line of business of any Person, (y) merger, consolidation or other business combination, or (z) series or group of related transactions or events of a type specified in excess of $100,000 annuallysubclauses (x) and (y);
(vii) all Contracts (including options) to sell or otherwise dispose of any Contract that is assets having a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or fair market value in excess of $250,000 other material obligations upon than in the Company to any Governmental Body after the date ordinary course of this Agreementbusiness;
(viii) all joint venture, partnership (involving sharing of profits) Contracts under which a party provides products or similar Contracts (and not including any sharing of profits by a Third Party with services to the Company or any Company Subsidiary on an exclusive basis for an amount reasonably likely to exceed aggregate annual payments of $2,000,000 that are based on sales of goods or services other cannot be terminated without penalty upon less than Company Products);90 days’ notice; and
(ix) any Contract under which any Governmental Body has any material rights;
agreements containing (A) any Contract containing covenants restricting or purporting to restrict competition whichpresently limiting, in either caseany material respect, have, would have or purport to have the effect ability of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto Company Subsidiary to compete with any Person in excess any line of $100,000, individually business or in the aggregate; and
any area or territory or (xviB) provisions granting any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectPerson “most favored nation” status.
(b) With respect to each Each Material Contract listed is in Part 2.9(a) full force and effect and represents a legally valid and binding obligation of the Company Disclosure Scheduleor the Company Subsidiary which is a party thereto. Except for such exceptions as would not be material, such Material Contract isas of the Agreement Date, (i) each of the Company and the Company Subsidiaries (and to the Knowledge of Seller, each other party thereto) has performed all obligations required to be performed by it under each of the Company, binding Material Contracts to which it is a party and enforceable against (ii) neither the Company and, nor any Company Subsidiary (and to the Knowledge of the CompanySeller, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract thereto) is in breach or violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any of the Material Contract by Contracts to which it is a party, nor has the CompanyCompany or any Company Subsidiary received any written notice that it has breached or violated any of the Material Contracts to which it is a party. The Company has made available to Parent true and complete copies completion of each such Material Contract the transactions contemplated in all this Agreement will not cause or result in any material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract breach or material default of a Material Contract), or in the acceleration of, or material increase in, the amount of any payment arising under any Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Riddell Bell Holdings, Inc.)
Material Contracts. (a) Part 2.9(aExcluding Government Contracts, Real Property Leases, and Benefit Plans (other than agreements with employees identified in Section 3.13(a)(i) below), Section 3.13(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set sets forth in Part 2.15(a) a true and complete list of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound all of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances (A) any such Contract solely between the Group Companies, (B) purchase or sale orders entered into in the Ordinary Course of Business which are not, individually or in the aggregate, material to employees and consultants the business of any Group Company, or (C) confidentiality or non-disclosure Contracts or teaming agreements entered into in the Ordinary Course of Business) to which any Group Company is a party or by which it is bound (2collectively, each Contract required to be so listed, the “Material Contracts”) obligating (provided, that such schedule shall exclude the listing of any Not Disclosable Contract):
(i) Contracts with each current officer or committing director, current employee (on a part-time or full-time basis) of a Group Company who receives annual compensation (excluding bonus and commissions) in excess of $200,000 per annum;
(ii) Contracts entered into since January 1, 2017 relating to the acquisition or disposition by a Group Company of any operating business, or the equity interests of any other Person, or any assets outside of the Ordinary Course of Business, in each case excluding Contracts with only non-binding terms, or confidentiality or exclusivity restrictions;
(iii) Contracts for or relating to make the making of any such material loans or advances; and (D) advances to, or guarantees for the benefit of any currency, commodity or other hedging or swap Contractanother Person;
(iv) any Contract creating or purporting Contracts that are expected to create any partnership, alliance or joint venture or any sharing of profits or losses by the involve (A) payment to a Group Company with any Third Party; or (B) payment by a Group Company, in either case of (A) or (B), of more than $2,000,000 in the aggregate for any individual Contract during the fiscal year ending December 31, 2020, in each case, that provides are not terminable by such Group Company without penalty on 90 days’ or less notice;
(v) Contract under which any Group Company is a lessee or lessor of any tangible property (other than real property), except for “earn-outs” any such Contract under which the aggregate annual rental payments do not exceed $200,000;
(vi) Contracts containing covenants of a Group Company prohibiting or materially limiting the right of any of the Group Companies to compete in any line of business or prohibiting or materially restricting their ability to conduct business with any Person in any geographic area;
(vii) Contracts for material joint venture agreements or similar material partnerships;
(viii) Contracts relating to collective bargaining or any other Contract between a Group Company and any labor union or other contingent payments by or employee representative;
(ix) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien (other than a Permitted Lien) on any of the assets of the Company that have not yet been paid or any Company Subsidiary, including indentures, guarantees, loan or credit agreements (except for (x) those being terminated or cancelled in connection with the Closing and (y) security agreements ancillary to any Lease of personal property with respect to the property so Leased).
(x) Contracts containing exclusivity obligations, granting to any Person any rights of first refusal or rights of first offer to purchase any Group Company’s assets or equity interests, obligating a Group Company to purchase or sell a stated portion of its requirements or outputs, granting any customer of any Group Company “most favored nation” status in any respect, including with respect to price;
(excluding xi) Contracts involving any contingent payments arising pursuant to recruiting resolution or settlement of any material actual or threatened Legal Proceeding or other dispute involving amounts over $250,000 within the last three (3) years;
(xii) Contracts that are indemnity agreements (excluding, for Company Service Providers the avoidance of doubt, any Contracts with indemnity obligations entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
either (A) any Contract containing covenants restricting of the Group Companies is obligated to indemnify or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in hold harmless any business or activity in any geographic area or other jurisdiction, Person (other than any such covenant set forth in this Agreement other Group Company), or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, Person (other than any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xiiGroup Companies) is obligated to indemnify or hold harmless any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;Group Companies; and
(xiii) any lease, sublease, rental or occupancy agreement, license outstanding binding commitment to enter into any agreement of the type described in subsections (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
i) through (xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(fxiii) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectthis Section 3.13(a).
(b) With respect to each Material Contract listed in Part 2.9(aExcept as set forth on Section 3.13(b) of the Company Disclosure Schedule, such each Material Contract isis in full force and effect and is a legal, to the Knowledge valid, and binding obligation of the Company, binding and enforceable against the Group Company party thereto and, to the Knowledge of the Company, against each the other party thereto other than or parties thereto, except as enforceability may be limited by applicable Equitable Principles. No Group Company or, to the Knowledge of the Company, any other party thereto, is in accordance default or breach in any material respect under the terms of any such Material Contract and, to the Knowledge of the Company, no event has occurred that with its terms, subject to (A) Laws notice or lapse of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations time or defaults which have not had, and both would constitute or reasonably be expected to haveconstitute, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision of, material breach 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, any Material Contract. No Group Company that is party to, and, and to the Knowledge of the Company, no other party to such any of the Material Contract is in violation of Contracts has exercised any provisiontermination, cancellation or taken or failed to take any act whichwithdrawal rights with respect thereto, with or without noticeand no Group Company, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received any written notice or, and to the Knowledge of the Company, no other communication regarding party thereto, has given notice to any actual or possible violation or breach of, or default under, Group Company of any significant dispute with respect to any Material Contract by the CompanyContract. The Company has made available to Parent true True and complete copies of each such Material Contract in all material respects (including all modifications, any amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific thereto) have been made available to provisions that make such Contract a Material Contract)Parent.
Appears in 1 contract
Sources: Merger Agreement (Kbr, Inc.)
Material Contracts. (a) Part 2.9(a) Annexed hereto as Schedule 3.15 is a true, complete and accurate list of all outstanding material contracts, agreements and commitments entered into by the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth and/or MSO which are in Part 2.15(a) of writing or have been orally agreed to by the Company Disclosure Schedule) that is in effectCompany, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):including:
(i) all written contracts with any Contract (officer, director, employee or group consultant of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;Company,
(ii) any Contract relating to all plans, contracts or arrangements providing for the acquisition grant of stock options or disposition by the Company share purchase arrangements, bonuses, pensions, deferred or incentive compensation, retirement, Change of any operating business Control or assets (other than pursuant to nonseverance payments, profit-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification sharing, insurance or other obligations benefit plans or rights (including put programs for any employee, officer, consultant or call options); or (C) any Contract under which director of the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;Company,
(iii) any guaranty, surety all option agreements or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;property-acquisition agreements,
(iv) any Contract creating or purporting to create any partnership, alliance or all joint venture or any agreements and agreements involving a sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);profits,
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;all royalty agreements,
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;all lease agreements,
(vii) all agreements relating to any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon Encumbrances granted against the Company to any Governmental Body after the date of this Agreement;Assets,
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);agreements respecting non-competition matters,
(ix) any Contract under which any Governmental Body has any material rights;all agreements respecting confidentiality matters,
(Ax) all agreements respecting any Contract containing covenants restricting Indebtedness over $5,000 on an individual basis or purporting to restrict competition which, $10,000 in either case, have, would have or purport to have the effect of prohibiting aggregate contracted by the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;and
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of all other material contracts entered into by the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect All contracts, agreements, benefit plans, leases and commitments required to each Material Contract listed in Part 2.9(a) be disclosed to the Purchaser pursuant to this Section 3.15 are legally-binding obligations of the Company Disclosure Scheduleand/or MSO as applicable, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, and/or MSO in accordance with its termsthe respective terms and provisions thereof, subject however to (A) Laws limitations with respect to enforcement imposed by law in connection with bankruptcy or similar proceedings and to the extent that equitable remedies such as specific performance and injunction are in the discretion of general application relating to bankruptcythe court from which they are sought, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and/or MSO is not in breach or violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, the terms of any such contract, agreement, plan, lease or commitment, except where such breach, violation or default would not have a Material Contract Adverse Effect on the Company and/or MSO, and no event has occurred which constitutes or, with the lapse of time or the giving of notice, or both, would constitute, such a breach, violation or default by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)and/or MSO.
Appears in 1 contract
Sources: Securities Purchase Agreement (International Gold Corp.)
Material Contracts. (a) Part 2.9(aExcept for this Agreement and the Contracts listed in Section 3.9(a) of the Company Disclosure Schedule lists each (any such Contract (other than any Company Plan set forth in Part 2.15(alisted or required to be listed on Section 3.9(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsa “Material Contract”), as of the date of this Agreement Agreement, there are no Contracts to which the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $20,000 on an annual basis, (ii) the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company (except for Off-the-Shelf Software Licenses), (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its properties products to any other Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or assets are otherwise bound sell its products, (iv) indemnification by the Company with respect to infringements of proprietary rights (other than any form agreement entered into in the ordinary course of business consistent with past practice and which form has been made available to the Parent), (v) any employment or restrictive covenant agreements (except for the Company’s standard form offer letters and proprietary information agreement, which forms have been made available to the Parent) and consulting agreements which involve payments by the Company in excess of $20,000 on an annual basis, (vi) any distributor or sales representative agreement, (vii) any agreement under which the Company is restricted from carrying on any business anywhere in the world, (viii) any agreement for the disposition of a material portion of the following categories Company’s assets, (such Contracts ix) any material lease or sublease pursuant to which the Company leases from others real or personal property or (x) any agreement for the acquisition by the Company of the business or securities or other ownership interests of another party.
(b) The Company has provided or otherwise made available to Parent a correct and complete copy of each Contract required to be disclosed under Part 2.9(alisted in Section 3.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) . With respect to each such Material Contract: (i) the Contract listed is legal, valid, binding, enforceable, and in Part 2.9(afull force and effect; (ii) of neither the Company Disclosure Schedule, such Material Contract isnor, to the Knowledge of Company’s Knowledge, any other party is in material breach or default, and to the Company’s Knowledge, binding no event has occurred and enforceable against the Company andno circumstance or condition exists, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of any provision of, or taken or failed to take any act which, with or without notice, notice or lapse of time, or both, time would constitute a default breach or default, or permit termination, modification, or acceleration, under the provisions of, any Material such Contract, andor give any Person the right to cancel, to the Knowledge terminate or modify any such Contract; or (iii) no party has repudiated any provision of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(aExcept as set forth on a correspondingly labeled subsection of Section 3.14(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that , neither Company nor any of its Subsidiaries is in effect, and that has not expired a party to or been terminated in accordance with its termsbound by, as of the date of this Agreement to which the Company is a party or by which hereof, any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) each contract, arrangement, commitment or understanding of the Company type described in this Section 3.14(a), whether written or oral and whether or not set forth in the Disclosure Schedule, the is referred to as a “Material ContractsContract”):
(i) any Contract contract or agreement entered into since January 1, 2012 (and any contract or group agreement entered into at any time to the extent that material obligations remain as of related Contractsthe date hereof), other than a Company Planin the ordinary course of business consistent with past practice, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease acquisition of the securities of or sale any material portion of real property, raw materials, goods, commodities, utilities, equipment, supplies, products the assets of any other Person or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeentity;
(ii) any Contract relating 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 the acquisition be capitalized in accordance with GAAP, in each case, where Company or disposition by the Company any of any operating business its Subsidiaries is a lender, borrower or assets (guarantor other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts those entered into in the Ordinary Course ordinary course of Businessbusiness;
(iii) any guaranty, surety contract or performance bond or letter agreement limiting the freedom of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets its Subsidiaries to engage in any line of the Company (excluding Permitted Liens); (C) business to compete with any Contract (1) relating to any loan or advance to any other Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;or
(iv) any Contract creating contract or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company agreement with any Third Party; Affiliate of Company or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)its Subsidiaries;
(v) any collective bargaining agreement of guarantee, support or indemnification by Company or its Subsidiaries, assumption or endorsement by Company or its Subsidiaries of, or any similar Contract commitment by Company or its Subsidiaries with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any trade union, works council or other labor organizationPerson other than those entered into in the ordinary course of business;
(vi) any offer letteragreement which would be terminable other than by Company or its Subsidiaries or any agreement under which a material payment obligation would arise or be accelerated, employment agreement, independent contractor agreement in each case as a result of the announcement or other Contract with consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any current Company Service Provider pursuant to which the Company is additional acts or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallyevents);
(vii) any Contract that is a settlementalliance, conciliationcooperation, joint venture, stockholder, partnership or similar agreement with involving a sharing of profits or losses relating to Company or any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreementits Subsidiaries;
(viii) all joint ventureany broker, partnership (involving sharing distributor, dealer, agency, sales promotion, customer or client referral, underwriter, administrative services, market research, market consulting or advertising agreement providing for annual payments by Company or its Subsidiaries of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other more than Company Products)$25,000;
(ix) any Contract under which agreement, option or commitment or right with, or held by, any Governmental Body has third party to acquire, use or have access to any material rightsassets or properties, or any interest therein, of Company or its Subsidiaries;
(Ax) any Contract containing covenants restricting contract or purporting to restrict competition whichagreement that contains any (w) exclusive dealing obligation, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (Bx) any Contract in which the Company has granted “exclusivityclawback” or similar undertaking requiring the reimbursement or refund of any fees, (y) “most favored nation” or similar provision or (z) provision that requires the Company to deal exclusively with, or grant exclusive rights or rights grants any right of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person right of first offer or similar right or that is a requirements contract; (C) any Contract that includes minimum purchase conditions limits or other requirements, in either case that exceed $100,000 in any calendar year purports to limit the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract ability of Company or any other Person isof its Subsidiaries to own, operate, sell, transfer, pledge or could become, entitled to otherwise dispose of any benefit, right assets or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personbusiness;
(xi) any Contract involving material contract or agreement which would require any consent or approval of a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services counterparty as a result of the Companyconsummation of the transactions contemplated by this Agreement;
(xii) any Contract involving commitments contract under which Company or any Company Subsidiary will have an obligation with respect to make capital expenditures an “earn-out,” contingent purchase price or to Contractsimilar contingent payment obligation, purchase or sell assets involving $100,000 or moreany other liability after the date hereof;
(xiii) any leaselease or other contract (whether real, subleasepersonal or mixed, rental tangible or occupancy agreement, license (not relating intangible) pursuant to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is annualized rent or lease payments for the lessee or lessor oflease year that includes December 31, or owns2016, uses or operates any leasehold or other interest as applicable, were in any real or personal propertyexcess of $25,000;
(xiv) any contract involving the purchase or sale of mortgage loans by the Company Intellectual Property Agreements; andBanks or their Affiliates;
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) contract or agreement for the use or purchase of the Company Disclosure Schedule) that contains a change in control clause materials, supplies, goods, services, equipment or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in other assets providing for aggregate payments by the Company or any successor thereto in excess its Subsidiaries of $100,000, individually or in the aggregate25,000; and
(xvi) any Contract contract not otherwise listed above that is material to the financial condition, results of operations or required to be listed in Part 2.9(a) business of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectits Subsidiaries.
(b) With Company and its Subsidiaries have performed in all material respects all of the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged (or otherwise known by Company) to be in default in respect to of, each Material Contract listed in Part 2.9(a) of the to which Company Disclosure Scheduleor its Subsidiaries are a party or by which Company or its Subsidiaries are bound, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and except as would reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse EffectEffect on Company and its Subsidiaries. Each of the Material Contracts is valid and binding on Company or its applicable Subsidiary and in full force and effect, the Company is not in violation without amendment, and there exists no default or event of any provision ofdefault or event, occurrence, condition or taken or failed to take any act whichact, with respect to Company or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice its Subsidiaries or, to the Knowledge of the Company, with respect to any other communication regarding contracting party, which, with the giving of notice, the lapse of the time or the happening of any actual other event or possible violation condition, would become a default or breach of, or event of default under, under any Material Contract by Contract, except as would not, individually or in the Companyaggregate, be material to Company and its Subsidiaries. The Company has made available to Parent true True, correct and complete copies of each such all Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific Contracts have been furnished or made available to provisions that make such Contract a Material Contract)Parent.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) Except as disclosed in Section 4.6 and Section 4.15 of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Memorandum, none of the Company Disclosure Schedule) that is in effectEntities, and that has not expired nor any of their respective Assets, businesses, or been terminated in accordance with its termsoperations, as of the date of this Agreement to which the Company is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleaffected by, the “Material Contracts”):or receives benefits under:
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(iia) any Contract relating to the acquisition borrowing of money by any Company Entity or disposition the guarantee by the any Company Entity of any operating business or assets such obligation (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract Contracts evidencing trade payables and Contracts relating to the acquisition borrowings or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into guarantees made in the Ordinary Course of Business);
(vb) any collective bargaining agreement Contract involving the use or similar Contract with ownership of any trade union, works council or Intellectual Property (other labor organizationthan contracts for commercially available “off the shelf” software licenses) by any Company Entity;
(vic) any offer letterContract relating to or involving any franchise, employment agreementpartnership, independent contractor agreement joint venture or other similar arrangement;
(d) any Contract with relating to the purchase or sale of any current goods or services (other than Contracts entered into in the Ordinary Course of Business) by any Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) Entity and involving payments under any individual Contract in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, 50,000 per year in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreementssales; and
(xve) any other existing Contract or amendment thereto of any Company Entity not otherwise covered by Sections 4.15(a) through 4.15(d), the loss of which would result in a Company Material Adverse Effect (excluding any together with all Contracts referred to in Section 4.10 and all Contracts for Company Owned Stores, the “Company Contracts”). With respect to each Company Contract and except as disclosed in Part 2.14(f) Section 4.6 and Section 4.15 of the Company Disclosure ScheduleMemorandum: (i) that contains a change the Contract is in control clause or similar provision that would be reasonably be expected to be triggered full force and effect in connection with the consummation of the Contemplated Transactions and would result in payments all material respects, enforceable by the Company Entity party thereto, except where enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights generally and except insofar as the availability of equitable remedies may be limited by applicable Law; (ii) no Company Entity is in Default thereunder; (iii) no Company Entity has repudiated or waived any successor thereto in excess material provision of $100,000, individually or in the aggregateany such Contract; and
and (xviiv) no other party to any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesDefault in any material respect or has repudiated or waived any material provision thereunder. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or as disclosed in the aggregate, a Company Material Adverse Effect, Section 4.15 of the Company is not in violation Disclosure Memorandum, all of the Indebtedness of any provision of, Company Entity for money borrowed is prepayable at any time by such Company Entity without penalty 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)premium.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) BTTA and BTTA Sub Co have delivered or otherwise made available to V2P true, correct and complete copies of the Company Disclosure Schedule lists each Contract all contracts and agreements (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement supplements thereto and all side letters to which either BTTA and BTTA Sub Co is a party affecting the Company obligations of any party thereunder) to which either BTTA or BTTA Sub Co is a party or by which any of its their respective properties or assets are otherwise bound that are, material to the business, properties or assets of BTTA or BTTA Sub Co taken as a whole, including, without limitation, to the extent any of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to haveare, individually or in the aggregate, material to the business, properties or assets of BTTA or BTTA Sub Co taken as a Company Material Adverse Effectwhole, all: (i) employment, product design or development, personal services, consulting, non-competition, severance, golden parachute or indemnification contracts (including, without limitation, any contract to which BTTA is a party involving employees of BTTA); (ii) licensing, publishing, merchandising or distribution agreements; (iii) contracts granting rights of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material properties or assets or stock or otherwise entered into since September 30, 2008; (vi) contracts or agreements with any Governmental Entity; and (vii) all commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 4.1 hereof, the Company “BTTA Contracts”). Neither BTTA nor BTTA Sub Co is not a party to or bound by any severance, golden parachute or other agreement with any employee or consultant pursuant to which such person would be entitled to receive any additional compensation or an accelerated payment of compensation as a result of the consummation of the transactions contemplated hereby.
(b) Each of the BTTA Contracts is valid and enforceable in violation accordance with its terms, and there is no default, other than what has been previously disclosed in BTTA’s SEC reports, under any BTTA Contract so listed either by BTTA or BTTA Sub Co or, to the knowledge of BTTA or BTTA Sub Co, by any provision ofother party thereto, or taken or failed to take any act which, and no event has occurred that with or without notice, the lapse of time, time or both, the giving of notice or both would constitute a default under the provisions of, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, thereunder by BTTA 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice BTTA Sub Co or, to the Knowledge knowledge of the CompanyBTTA or BTTA Sub Co, any other party, in any such case in which such default or event could reasonably be expected to have a Material Adverse Effect on BTTA or BTTA Sub Co.
(c) No party to any such BTTA Contract has given notice to BTTA of or made a claim against BTTA or BTTA Sub Co with respect to any breach or default thereunder, other communication regarding than what has been previously disclosed in BTTA’s SEC reports, in any actual or possible violation or such case in which such breach of, or default under, any Material Contract by the Company. The Company has made available could reasonably be expected to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract have a Material Contract).Adverse Effect on BTTA or BTTA Sub Co.
Appears in 1 contract
Sources: Acquisition Agreement (Boatatopia)
Material Contracts. (a) Part 2.9(a) Section 3.19 of the Company Fusion Disclosure Schedule lists each Contract sets forth a list of all Material Contracts (other than any Company Plan set forth in Part 2.15(a) as hereinafter defined). Fusion has heretofore made available to Parent true, correct and complete copies of the Company Disclosure Schedule) that is in effectall written or oral contracts and agreements (and all material amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement supplements thereto and all side letters to which Fusion or any of its subsidiaries is a party materially affecting the Company obligations of any party thereunder) to which Fusion or any of its subsidiaries is a party or by which any of its properties or assets are otherwise bound that are material to the business, properties or assets of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure ScheduleFusion and its subsidiaries taken as a whole, the “Material Contracts”):
including, without limitation, all: (i) employment, severance, personal services or consulting contracts (other than any Contract (or group of related Contractssuch contracts that are terminable without penalty upon not more than 90 days notice), other than and all non-competition or indemnification contracts with current or former directors, officers or employees of Fusion or any of its subsidiaries (including, without limitation, any contract to which Fusion or any of its subsidiaries is a Company Planparty involving employees of Fusion); (ii) material license agreements relating to Intellectual Property (as defined in Section 3.21) granting to Fusion a license to practice technology used in the conduct of its current or planned operations; (iii) contracts granting a right of first refusal or first negotiation for essential properties, that requires future payments by services or to supplies, or material sales not in the Company ordinary course; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease (including leases in connection with financing transactions) of any properties or assets of Fusion with a value in excess of $100,000 in any calendar year5,000 (by merger, including any such Contract (or group of such Contracts that are related) for the purchase, lease purchase or sale of real propertyassets or stock or otherwise) entered into since inception; (vi) material contracts or agreements with any Governmental Entity; (vii) loan or credit agreements, raw materialsmortgages, goods, commodities, utilities, equipment, supplies, products indentures or other personal property, agreements or instruments evidencing (A) indebtedness for the provision borrowed money by Fusion or receipt any of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ its subsidiaries or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than such agreement pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights indebtedness for borrowed money may be incurred (including put or call options); or (Cguaranties) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) Liens securing any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
such indebtedness; (viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company agreements that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have limit, curtail or restrict the effect ability of prohibiting Fusion or any of its subsidiaries, or would restrict the Company, or, after the Closing, ability of Parent or the Surviving Entity from engaging in any business or activity of its subsidiaries, to compete in any geographic area or line of business; (ix) agreements or arrangements, including but not limited to ▇▇▇▇▇▇, options, swaps, caps and collars, designed to protect Fusion or any of its subsidiaries against fluctuations in interest rates, currency exchange rates or the prices of certain commodities and raw materials; (x) to the extent not otherwise required to be disclosed pursuant to any other jurisdictionclause of this Section 3.19(a), other than contracts or agreements that would be required to be filed as an exhibit to a Form 10-K filed by the Parent with the SEC; and (xi) commitments and agreements to enter into any of the foregoing (collectively, together with any such covenant contracts entered into in accordance with Section 5.1 hereof, the "Material Contracts"). Except as set forth in this Agreement Section 3.19 of the Fusion Disclosure Schedule, neither Fusion nor any of its subsidiaries is a party to or the agreements ancillary hereto; (B) bound by any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor severance or other Person agreement with any employee or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year consultant pursuant to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to person would be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees any additional compensation or markups related to the provision or resale an accelerated payment of goods or services compensation as a result of the Company;
(xiix) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by transactions contemplated hereby or (y) the Company termination of such employment or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if consulting following such Contract expired without being renewed, would have a Company Material Adverse Effectconsummation.
(b) With respect to each Each of the Material Contracts is in full force and effect. There is no breach or default under any Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract iseither by Fusion or, to Fusion's knowledge, by any other party thereto, and no event has occurred that with the Knowledge lapse of time or the Company, binding and enforceable against the Company andgiving of notice or both would constitute a breach or default thereunder by Fusion or, to the Knowledge of the CompanyFusion's knowledge, against each party thereto any other than the Companyparty, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except except for breaches, violations any such breach or defaults which have default as does not had, and or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other Effect on Fusion.
(c) No party to any such Material Contract is in violation has given notice to Fusion of or made a claim against Fusion with respect to any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but except for any such breach or default as does not including purchase orders and similar confirmatory documents or would not specific reasonably be expected to provisions that make such Contract have, individually or in the aggregate, a Material Contract)Adverse Effect on Fusion.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) Section 2.9 of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termslists, as of the date of this Agreement hereof, each Contract (excluding any Contract that is or relates to an Employee Benefit Plan) to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (each such Contracts required to be disclosed under Part Contract listed on Section 2.9(a) of the Company Disclosure Schedule and also any Employee Benefit Plans that are described below, but not required to be listed on Section 2.9(a) of the Disclosure Schedule, the a “Material ContractsContract”):
): (i) any Contract (evidencing or group providing for Indebtedness of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
1,500,000; (ii) any Contract relating containing obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the acquisition or disposition making by the Company of any operating business future payments in excess of $5,000,000 annually or assets $10,000,000 during the remaining life of the Contract (other than pursuant to non-exclusive licenses or grants purchase orders in the Ordinary Course of non-exclusive rightsBusiness); (Biii) providing for the sale of any Contract relating to the acquisition or disposition by material assets of the Company of any operating business or assets (other than sales of inventory, product or obsolete equipment in the Ordinary Course of Business); (iv) purporting to prevent, limit or otherwise restrict the ability of the Company to declare, set aside or pay any dividend or other distribution, whether payable in cash, stock or other property, with respect to the Shares or any Equity Interests of the Company; (v) pursuant to non-exclusive licenses or grants of non-exclusive rightswhich (A) under which the Company has grants a license, sublicense, or covenant not to sue any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) Person under any Contract under which the Company have any indemnification obligationsIntellectual Property Rights, other than any such Contracts non- exclusive licenses of, or covenants with respect to, Intellectual Property Rights entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; Business or (B) any Contract that provides for “earn-outs” Person grants a license, sublicense or other contingent payments by or covenant not to sue to the Company that have any material Intellectual Property Rights of any third party, other than, in each case (A) and (B), (1) Contracts for commercially available software, off-the-shelf software, “click-wrap” or “shrink-wrap” licenses or cloud-based services or platforms and (2) Contracts to which the licensing of such Intellectual Property Rights are incidental, and not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade unionmaterial to, works council or other labor organization;
such Contracts. (vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
a Collective Bargaining Agreement; (vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint ventureService Provider providing for retention, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company transaction bonuses or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.severance benefits;
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and as would reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effectreasonably be expected to be material to the Company, (i) the Company is not in violation of 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, any Material Contract, (and, to the Knowledge of the CompanySeller, no other party to such Material Contract is is) in violation of any provision, 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 any Material Contract. Since January 1, 2021(ii) each of the Material Contracts is in full force and effect, and is a valid, binding and enforceable obligation of the Company, and to the Knowledge of Seller, of the other parties thereto, subject to the General Enforceability Exceptions, (iii) the Company has performed all material obligations required to be performed by it to date under the Material Contracts, and (iv) the Company has not received any written notice orof termination with respect to, and, to the Knowledge of the CompanySeller, other communication regarding any actual or possible violation or breach of, or default underno party has threatened in writing to terminate, any Material Contract. For purposes of this Section 2.9(b), “Material Contract” shall include each Contract by entered into after the Companydate hereof that would constitute a Material Contract if entered into prior to the date hereof. The Company has made available to Parent true Buyer true, correct and complete copies of each such Material Contract in all material respects (Contract, including all any exhibits, annexes, appendices or attachments thereto, and any amendments, modifications, amendments and supplements thereto and waivers thereundersupplements, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).extensions or renewals thereto. Litigation
Appears in 1 contract
Sources: Stock Purchase Agreement (Vse Corp)
Material Contracts. (aError! Bookmark not defined.(a) Part 2.9(a) As of the Company Disclosure Schedule lists each Contract (other than any Company Plan date hereof, except as set forth in Part 2.15(a) Section 3.11 of the Company Seller Disclosure Schedule) that is in effectSchedules, and that has not expired or been terminated in accordance with its terms, as none of the date of this Agreement to which the Company Companies is a party to or bound by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the each a “Material ContractsContract”):
(i) any Contract lease (whether of real or group of related Contracts), other than a Company Plan, that requires future personal property) providing for annual rental payments by or to the such Company in excess of $100,000 in any calendar year, including any such Contract (500,000 or group of such Contracts more that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is cannot terminable without penalty be terminated on 90 not more than 60 days’ or shorter noticenotice without payment by such Company of any material penalty;
(ii) any Contract relating to for the acquisition purchase of goods or disposition services providing for either (A)annual payments by the such Company of $500,000 or more or (B)aggregate payments by such Company of $2,500,000 or more, in each case that cannot be terminated on not more than 60 days’ notice without payment by such Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businessmaterial penalty;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation sale by such Company of goods or granting any Lien upon any services that provides for either (A)annual payments to such Company of the property $500,000 or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) more or (2) obligating B)aggregate payments by such Company of $2,500,000 or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractmore;
(iv) any Contract creating or purporting to create any material partnership, alliance or joint venture or any sharing of profits other similar agreement or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)arrangement;
(v) any collective bargaining agreement Contract relating to (A) the acquisition or similar Contract with disposition of any trade unionbusiness or operations (whether by merger, works council sale of stock, sale of assets or other labor organizationotherwise) or (B) the acquisition of any assets or the incurrence of any liabilities by any Company, in each case under this clause (v) involving an amount in excess of $5,000,000;
(vi) any offer letterContract relating to Indebtedness of such Company, employment agreement, independent contractor agreement or other except any such Contract with any current Company Service Provider pursuant respect to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess an aggregate outstanding principal amount of Indebtedness not exceeding $100,000 annually5,000,000;
(vii) any exclusive dealing Contract that is a settlement, conciliationmaterially limits the freedom of such Company or any Contract that contains express non‑competition or non-solicitation covenants that materially limit or purport to materially limit the freedom of such Company to compete in any line of business or with any Person or in any area, or similar agreement with to solicit the business of any Governmental Body Person or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date category of this AgreementPersons;
(viii) all joint ventureany Contract that (A)grants any rights of first refusal, partnership (involving sharing right of profits) first offer or similar Contracts rights with respect to any material assets, rights or property of any Company, (and not including B)materially limits or purports to materially limit the ability of any sharing Company to own, operate, sell, transfer, pledge or otherwise dispose of profits by any material assets or business such Company owns, or (C)contains a Third Party with the Company that are based on sales of goods “most favored nation” clause or services similar term providing preferential pricing to a party (other than Company Products)a Company) that is material to the Companies as a whole;
(ix) any material Contract under which by any Governmental Body has Company with Seller or any material rightsof its Affiliates or any director or officer of Seller or any of its Affiliates;
(Ax) any (A)consulting Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any employment Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is with any director or officer of a requirements contract; Company or (C) any B)severance Contract, retention Contract, change of control Contract, consulting Contract or employment Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 upon 30 days’ notice or shorter notice; or (D) less and without any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract financial obligation exceeding $100,000, or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms similar Contract with an employee of such Contract, is required to be at least as favorable to such party as those offered to another Persona Company;
(xi) any material Contract involving with a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the CompanyGovernmental Authority;
(xii) any Contract involving commitments that contains a license for such Company to make capital expenditures or use any third-party Intellectual Property (other than Contracts for off-the-shelf software for an annual license fee of no more than $100,000) and is material to Contract, purchase or sell assets involving $100,000 or more;the conduct of the business of the Companies as currently conducted; or
(xiii) any lease, sublease, rental or occupancy agreement, Contract containing a license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in grant of rights to any real or personal property;
(xiv) the Company third party to use any Intellectual Property Agreements; and
that is owned by such Company (xvother than non-exclusive licenses granted in the ordinary course of business) any Contract (excluding any Contract disclosed in Part 2.14(f) and is material to the conduct of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation business of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectCompanies as currently conducted.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Subscription Agreement (Oriental Financial Group Inc)
Material Contracts. (a) Part 2.9(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in on Part 2.15(a2.14(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 200,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) (A) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) (A) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) (A) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 200,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity Company from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or ownsown, uses use or operates operate any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 20212020, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) Except as disclosed in Section 5.16 of the Company FNBGC Disclosure Schedule lists each Contract (other than any Company Plan set forth Memorandum or otherwise reflected in Part 2.15(a) the GHC Financial Statements, none of the Company Disclosure Schedule) that is in effectGHC Entities, and that has not expired nor any of their respective Assets, businesses, or been terminated in accordance with its termsoperations, as of the date of this Agreement to which the Company is a party to, or by which any of its properties is bound or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Scheduleaffected by, the “Material Contracts”):
or receives benefits under, (i) any employment, severance, termination, consulting, or retirement Contract (or group of related Contracts), other than a Company Plan, that requires future providing for aggregate payments by or to the Company any Person in any calendar year in excess of $100,000 in any calendar year25,000, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition borrowing of money by any GHC Entity or disposition the guarantee by the Company any GHC Entity of any operating business or assets such obligation (other than pursuant Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of depository institution Subsidiaries, trade payables and Contracts relating to nonborrowings or guarantees made in the ordinary course of business), (iii) any Contract which prohibits or restricts any GHC Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract between or among GHC Entities, (v) any Contract involving Intellectual Property (other than Contracts entered into in the ordinary course with customers and "shrink-exclusive licenses or grants of non-exclusive rightswrap" software licenses); , (Bvi) any Contract relating to the acquisition provision of data processing, network communication, or disposition other technical services to or by any GHC Entity, (vii) any Contract relating to the Company purchase or sale of any operating business goods or assets services (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course ordinary course of Business;
business and involving payments under any individual Contract not in excess of $50,000), (iiiviii) any guarantyexchange-traded or over-the- counter swap, surety forward, future, option, cap, floor, or performance bond collar financial Contract, or letter of credit issued any other interest rate or postedforeign currency protection Contract not included on its balance sheet which is a financial derivative Contract, as applicable, by the Company; and (Bix) any other Contract evidencing or relating amendment thereto that would be required to Debt of the Company or providing for the creation of or granting be filed with any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding relevant Regulatory Authority as of the date of this Agreement (other than immaterial advances together with all Contracts referred to employees in Sections 5.10 and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property5.15(a), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) "GHC Contracts"). With respect to each Material GHC Contract listed and except as disclosed in Part 2.9(a) Section 5.16 of the Company FNBGC Disclosure ScheduleMemorandum: (i) the Contract is in full force and effect; (ii) no GHC Entity is in Default thereunder, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults Defaults which have are not had, and would reasonably be expected likely to have, individually or in the aggregate, a Company GHC Material Adverse Effect, the Company is not in violation ; (iii) no GHC Entity has repudiated or waived any material provision of any provision of, or taken or failed such Contract; and (iv) no other party to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Material Contract, andsuch Contract is, to the Knowledge of GHC, in Default in any respect, other than Defaults which are not reasonably likely to have, individually or in the Companyaggregate, no other party a GHC Material Adverse Effect, or has repudiated or waived any material provision thereunder. Except as disclosed in Section 5.16 to such Material Contract is in violation the FNBGC Disclosure Memorandum, all of the indebtedness of any provision, GHC Entity for money borrowed is prepayable at any time by such GHC Entity without penalty 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)premium.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 2.12(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth purchase orders) in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, effect as of the date of this Agreement to which the Company is a party or by which any of its properties business or assets are otherwise bound of in the following categories (such Contracts required other than any (1) nondisclosure agreements entered into (x) in the ordinary course of business or (y) in connection with discussions, negotiations and transactions related to this Agreement or other potential strategic transactions or (2) that is a Company Plan, which shall be disclosed governed under Part 2.9(aSection 2.17 (Employee Benefit Plans and Employee Matters)) of the Company Disclosure Schedule, (the “Material Contracts”):
(i) any Contract (or group series of related Contracts), other than a Company Plan, Contracts that requires future payments by or to the Company in excess of $100,000 250,000 in any calendar yearyear or $500,000 in the aggregate, including any such Contract (or group of such Contracts that are related) for the purchase, lease purchase or sale of real propertyassets, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating related to the acquisition an acquisition, divestiture, merger or disposition by the Company of any operating business or assets (other than pursuant to nonsimilar transaction containing representations, covenants, indemnities, purchase price payments, “earn-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification outs”, adjustments or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) (A) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted LiensEncumbrances); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this the Agreement (other than immaterial advances to employees and consultants in the Ordinary Course ordinary course of Businessbusiness consistent with past practices) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractcontract or other financial agreement or arrangement entered into for the purpose of limiting or managing interest rate risks;
(iv) any Contract creating or purporting to create any partnership, joint venture, collaboration, strategic alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)third party;
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, Company or, after the Closing, Parent or the Surviving Entity Corporation from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contractPerson; (C) any Contract that includes minimum purchase conditions or other requirementssimilar requirements imposed on the Company, in either case that exceed $100,000 250,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeyear; or (D) any Contract containing a “most-favored-nation,” ”, “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).by
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) Except for this Agreement and for Contracts filed or incorporated by reference as exhibits with the SEC or as set forth in Section 3.18 of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Letter, none of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as any of the date of this Agreement to which the Company Subsidiaries is a party to or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):by:
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC;
(ii) any loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any indebtedness of the Company or group any of related Contracts)the Company Subsidiaries, in each case in excess of $200,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any wholly owned Company Subsidiaries and any letters of credit;
(iii) any Contract (other than Leases and Franchise Agreements) to which the Company or any of the Company Subsidiaries is a Company Plan, party that requires future by its terms calls for aggregate payments by or to the Company in excess or any of the Company Subsidiaries of more than $100,000 in any calendar year, including any 1,000,000 over the remaining term of such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is may not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition be canceled by the Company of or any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company Subsidiaries upon notice of ninety (90) days or providing for the creation of less without penalty or granting any Lien upon any of the property or assets of other material liability to the Company (excluding Permitted Liens); (C) or any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractSubsidiary;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture of the Company or any sharing Company Subsidiary that (A) grants a right of profits exclusivity to a geographic region, area of protection, right of first offer, right of first refusal or losses similar right with respect to any business or geographic region (“Exclusive Rights”), other than such rights set forth in the Leases and Franchise Agreements entered into in the ordinary course of business consistent with past practice; (B) authorizes any person to grant others the right to license any trademark, service ▇▇▇▇ or other Intellectual Property owned by the Company or any of the Company Subsidiaries in any geographic area (“Master Franchise Rights”); (C) restricts the ability of the Company or any of its Affiliates (including following the Closing) to compete with any Third Partybusiness or with any person or in any geographical area or to solicit customers, other than such restrictions set forth in the Leases and Franchise Agreements entered into in the ordinary course of business consistent with past practice; (D) would require the disposition of any material assets or line of business of the Company or any of the Company Subsidiaries or, after the Effective Time, of Parent or any of its Subsidiaries; (E) grants “most favored nation” status to, or is a “requirements” Contract with a supplier or Franchisee, in each case that, following the Merger, would apply to Parent or any of its Affiliates (including the Company or any of the Company Subsidiaries); or (BF) prohibits or limits the right of the Company or any Contract of the Company Subsidiaries to use, transfer, license, distribute or enforce any of their respective Company Owned Intellectual Property, other than limitations on enforcement arising from non-exclusive licenses of Company Owned Intellectual Property entered into in the ordinary course of business consistent with past practice; in each case under clauses (A)-(F) that provides for “earn-outs” limits in any material respect the operation of the Company and the Company Subsidiaries, taken as a whole, as currently conducted and that may not be canceled by the Company or any Company Subsidiary upon notice of ninety (90) days or less without penalty or other contingent payments by or material liability to the Company that have not yet been paid to the or any Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Subsidiary;
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, conciliation or similar agreement (A) that is with any Governmental Body or that imposes any monetary or other material obligations upon Authority, (B) pursuant to which the Company to or any Governmental Body of the Company Subsidiaries is obligated after the date of this AgreementAgreement to pay consideration in excess of $100,000 (net of insurance proceeds actually received), or (C) that would otherwise reasonably be expected to limit in any material respect the operation of the Company or any of the Company Subsidiaries (or, to the knowledge of the Company, Parent or any of its other Affiliates from and after the Closing) as currently operated;
(vi) any Contract other than Leases and Franchise Agreements entered into in the ordinary course of business consistent with past practice that grants to any person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any assets material to the Company and its Subsidiaries, taken as a whole;
(vii) any material Contract to which any of the five (5) largest suppliers of the Company and the Company Subsidiaries based on the consolidated cost of goods and services paid to such Persons by the Company and its Subsidiaries for the fiscal year ended December 31, 2017 (each, a “Principal Supplier”) is a party (excluding purchase orders in the ordinary course of business consistent with past practice) that has a term of more than sixty (60) days and that may not be canceled by the Company or any of its Subsidiaries without material penalty or other material liability to the Company or any of its Subsidiaries, upon notice of sixty (60) days or less;
(viii) all any Contract with respect to a material joint venture, venture or material partnership agreement (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Productsexcluding information technology Contracts);
(ix) any Contract under Company Employee Agreement pursuant to which the Company or any Governmental Body has Company Subsidiary is or may become obligated to (A) make any material rightsseverance, termination, tax gross-up or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments required by applicable Law that do not exceed $100,000 per beneficiary or (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary or commissions paid in the ordinary course of business) in excess of $100,000 to any Company Associate;
(Ax) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdictionContract, other than any such covenant set forth in this Agreement the Leases, for the acquisition, disposition, sale or the agreements ancillary hereto; lease of material properties or assets (B) any Contract in which the Company has granted “exclusivity” by merger, purchase or that requires the Company to deal exclusively with, sale of stock or grant exclusive rights assets or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personotherwise);
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any leaseother than the Leases, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in contemplating payments by the Company or any successor Subsidiary of more than $1,000,000 in any calendar year which cannot be canceled by the Company or any Company Subsidiary without penalty or further payment without more than 90 days’ notice; and
(xii) any Franchise Agreement. Each such Contract described in clauses (i) through (xii) is referred to herein as a “Company Material Contract.”
(b) Each of the Company Material Contracts is valid and binding on the Company and each Company Subsidiary party thereto and, to the knowledge of the Company, each other party thereto and is in excess of $100,000full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate; and
(xvi) , have a Company Material Adverse Effect. There is no default under any Company Material Contract not otherwise listed or required to be listed in Part 2.9(a) of by the Company Disclosure Schedule (including or any Company Intellectual Property Agreements) thatSubsidiary, if terminatedexcept as would not, individually or if such Contract expired without being renewedin the aggregate, would reasonably be expected to have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Merger Agreement (Jamba, Inc.)
Material Contracts. (a) Part 2.9(a) To the Knowledge of Seller, as of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(adate hereof, Parts I and II of Section 3.8(a) of the Company Disclosure Schedule) that is in effect, together, constitute a true and that has not expired or been terminated in accordance with its terms, as complete list of all of the date of this Agreement following Contracts to which the Company is a party or by which any of the Company and/or its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) Contracts evidencing any Contract obligations of the Company with respect to the issuance, sale, repurchase or redemption of any Equity Securities of the Company; CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
(or group ii) all Company IP Agreements that are material to the operation of related Contracts)the business of the Company, other than a “material transfer agreements” in customary form entered into in the ordinary course of business;
(iii) Contracts relating to any Litigation involving the Company Planat any time since the acquisition of the Company by an Affiliate of Seller;
(iv) Contracts limiting the freedom of the Company to engage in any line of business, that requires future acquire any entity or compete with any Person or in any market or geographical area;
(v) Contracts concerning any joint venture, or any research, development, manufacturing or commercialization collaboration or partnership;
(vi) Contracts to supply or manufacture any materials for any third party;
(vii) Contracts with any director or officer of the Company;
(viii) all Contracts not otherwise listed above involving reasonably anticipated payments by to or to from the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect250,000 per annum.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Stock Purchase Agreement (Alnylam Pharmaceuticals, Inc.)
Material Contracts. (a) Part 2.9(a) Section 4.11 of the Company PWM Disclosure Schedule lists sets forth a complete list of each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) following Contracts that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the any Health Forward Group Company is a party or by which to, to any of its Health Forward’s properties or assets are otherwise bound of the following categories by (each such Contracts required Contract described in clauses (i) to be (xvii) below, whether or not disclosed under Part 2.9(a) of in the Company Disclosure Schedule, the is referred to as a “Material ContractsContract”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or relating to the Company in excess issuance of $100,000 any share capital or voting securities of or any other ownership interests in any calendar yearHealth Forward Group Company or any securities convertible, including exchangeable or exercisable into any such Contract (share capital or group voting securities of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or any other personal property, or for the provision or receipt of services, ownership interests in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeany Health Forward Group Company;
(ii) any Contract relating to the acquisition that involves payments (or disposition by the Company a series of any operating business payments), contingent or assets (other than pursuant to non-exclusive licenses otherwise, of RMB1,000,000 or grants of non-exclusive rights); (B) any Contract relating to the acquisition more individually or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course aggregate with respect to a series of Businessrelated agreements, in cash, property or services;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is Indebtedness with an aggregate outstanding amount as of the date hereof greater than RMB1,000,000 or placing of this Agreement a Lien (other than immaterial advances to employees and consultants in the Ordinary Course a Permitted Lien) on any assets of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractHealth Forward Group Company;
(iv) any Contract creating under which any Health Forward Group Company has advanced or purporting loaned monies to create any partnershipother Person or otherwise agreed to advance, alliance loan or joint venture invest any funds involving an amount in excess of RMB1,000,000 individually or in any sharing series of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)related transaction;
(v) any collective bargaining agreement joint venture contracts, strategic cooperation, partnership arrangements or similar Contract other agreements, including those involving a sharing of profits, losses, costs or liabilities with any trade union, works council or other labor organizationthird party;
(vi) any offer letterContract that limits, employment agreementor purports to limit, independent contractor agreement the ability of any Health Forward Group Company to compete in any line of business or other Contract with any current Company Service Provider pursuant to which the Company is Person or reasonably could be obligated to pay compensation (excluding variable compensation) in excess any geographic area or during any period of $100,000 annuallytime;
(vii) any Contract Contracts that is a settlementcontain continuing indemnification, conciliationguarantee, or similar agreement with any Governmental Body or that imposes any monetary earn-out or other material obligations upon the Company to any Governmental Body after the date of this Agreementcontingent payment obligations;
(viii) all joint ventureany Contract for the acquisition or disposition, partnership directly or indirectly (involving sharing including by merger, consolidation, combination or amalgamation) of profits) assets or similar Contracts (and not including any sharing share capital or other equity interests of profits by another Person, for a Third Party with the Company that are based on sales consideration in excess of goods or services other than Company Products)RMB1,000,000;
(ix) any Contract under which any with Governmental Body has any material rightsAuthority;
(Ax) any Contract containing covenants restricting Contracts that prohibits the payment of dividends or purporting to restrict competition which, distributions in either case, have, would have or purport to have respect of the effect share capital of prohibiting the any Health Forward Group Company, or, after prohibits the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms pledging of such Contract, is required to be at least as favorable to such party as those offered to another Personshare capital or prohibits the issuance of guarantees by any Health Forward Group Company;
(xi) any Contract involving that will be terminated or varied upon consummation of the Transactions or a sales agentchange of control of any Health Forward Group Company, representative, distributor, reseller, middleman, marketer, broker, franchisor will subject the consummation of the Transactions or similar Person who is entitled to receive commissions, fees or markups related a change of control of any Health Forward Group Company to the provision consent of any Person or resale of goods or services will trigger any payment to any Person as a result of the consummation of the Transactions or a change of control of any Health Forward Group Company;
(xii) any Contract involving commitments between any Health Forward Group Company, on the one hand, and any Related Person, on the other hand, other than any employment agreement relating to make capital expenditures services as employees, officers or to Contract, purchase or sell assets involving $100,000 or moredirectors of any Health Forward Group Company;
(xiii) any lease, sublease, rental or occupancy agreement, license (not Contract relating to any license or acquisition of any Intellectual Property), installment, and conditional sale agreement Property providing for annual payments to or agreement under which by any Health Forward Group Company in the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest amount in any real or personal propertyexcess of RMB1,000,000;
(xiv) any Contract involving the Company Intellectual Property Agreements; andwaiver, compromise, or settlement of any material Action;
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause any dealer, sales representative, marketing or other similar provision that would be reasonably be expected to be triggered in connection agreement with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto an amount which is in excess of $100,000, individually or in the aggregateRMB5,000,000; and
(xvi) any Contract not otherwise listed pursuant to which any Health Forward Group Company has granted a power of attorney, agency or required similar authority to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectthird party.
(b) With respect to A true and complete copy of each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such has been made available to CBPO by PWM. Each Material Contract isis a legal, to the Knowledge valid and binding obligation of the Company, binding and enforceable against the Company Health Forward or its applicable Subsidiaries and, to the Knowledge of PWM, the Companyother parties thereto, against each party thereto other than the Company, in full force and effect and enforceable in accordance with its terms, terms subject to (A) Laws of general application relating to bankruptcy, insolvency the Bankruptcy and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesEquity Exception. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge None of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice Health Forward Group Companies or, to the Knowledge of the CompanyPWM, any other communication regarding any actual party thereto is in breach or possible violation or breach of, or default under, any Material Contract by the Companyin any material respect. The Company has made available to Parent true and complete copies Health Forward Group Companies have not received any written claim or notice of each default, amendment, modification, termination or cancellation under any such Material Contract in all any material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)respect.
Appears in 1 contract
Sources: Share Exchange Agreement (China Biologic Products Holdings, Inc.)
Material Contracts. (a) Part 2.9(aExcept (i) of for this Agreement, (ii) for the Company Disclosure Schedule lists each Contract Contracts filed as exhibits to the SEC Reports, (other than any Company Plan iii) for the Seller Employee Plans and (iv) as set forth in Part 2.15(a) Schedule 3.8 of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termsLetter, as of the date of this Agreement to which the Company is a party or by which any of its properties or assets are otherwise bound hereof, none of the following categories (such Contracts required to be disclosed under Part 2.9(a) Acquired Companies is party to, and none of the Company Disclosure ScheduleAcquired Companies is bound by, any Contract with respect to the “Material Contracts”):Acquired Business that:
(i) contains (A) covenants binding upon any Contract (or group of related Contracts), other than a Acquired Company Plan, that requires future payments by or to the Company in excess of $100,000 restrict in any calendar year, including any such Contract (or group material respect the ability of such Contracts that are related) for the purchase, lease or sale Acquired Company to compete in any line of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal propertybusiness, or for with any Person, or in any geographic area or territory binding on any of the provision Acquired Companies, or receipt (B) exclusivity or “more favored nation” obligations, or granting material rights of servicesfirst refusal, in each case to first offer or first negotiation or similar rights, obligations or restrictions binding on any of the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeAcquired Companies;
(ii) is a joint venture, partnership or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture between an Acquired Company and a third party;
(iii) (A) is an indenture, note, credit agreement, loan agreement, financing agreement, security agreement, guarantee, bond, other evidence of debt, or similar Contract relating to the acquisition incurrence, assumption or disposition by the Company guarantee of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under Indebtedness, which the Company has any executory covenants or indemnification guarantee or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsobligation has an outstanding balance, individually in excess of $1,500,000, other than any such Contracts entered into in Contract between or among any of the Ordinary Course of Business;
(iii) any guarantyAcquired Companies, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) grants an Encumbrance on all or any Contract evidencing or relating to Debt part of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Acquired Companies, other than Permitted Liens); Encumbrances or Encumbrances which shall be released at or prior to the Closing or (C) any Contract (1) relating agrees to any loan or advance to any Person which is outstanding as of make after the date hereof any advance, loan, extension of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) credit or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencycapital contribution to, commodity or other hedging or swap Contractinvestment in, any Person, which obligation exceeds $1,500,000;
(iv) any Contract creating prohibits the payment of dividends or purporting to create any partnershipdistributions in respect of the capital stock of the Acquired Companies or prohibits the pledging, alliance redemption or joint venture or any sharing repurchase of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” capital stock or other contingent payments by or to equity interests of the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)Acquired Companies;
(v) any collective bargaining agreement relates to Intellectual Property or similar Contract with any trade union, works council material IT Assets other than (A) licenses or agreements for off-the-shelf software or other labor organizationIT Assets commercially available on standard terms for annual or aggregate payments of no more than $1,000,000 or (B) non-exclusive licenses granted by the Acquired Companies to customers in the ordinary course of business consistent with past practice;
(vi) any offer letterother than ordinary course purchaser orders or similar arrangements with suppliers of the Acquired Business, employment agreement, independent contractor agreement has resulted in payments by the Acquired Business of more than $1,500,000 in the aggregate for Seller’s 2019 fiscal year (other than Contracts subject to clause (iii) above or other Contract with any current Company Service Provider pursuant to which Real Property Leases) or could result in aggregate payments by the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) Acquired Business in excess of $100,000 annually1,500,000;
(vii) any Contract that other than ordinary course purchaser orders or similar arrangements with customers of the Acquired Business, is a settlement, conciliationmaster services agreement or other Contract or arrangement that has resulted in payments to, or similar agreement with any Governmental Body generated revenues for, the Acquired Business of more than $1,500,000 in the aggregate for Seller’s 2019 fiscal year or that imposes any monetary or other material obligations upon could result in aggregate payments to the Company to any Governmental Body after the date Acquired Business in excess of this Agreement$1,500,000;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by is a Third Party with the Company that are based on sales of goods or services other than Company Products)Shared Contract;
(ix) any Contract under which any Governmental Body has any material rightsis a Real Property Lease with an annual lease payment of more than $1,500,000;
(Ax) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving which a Governmental Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Personparty;
(xi) with respect to any Contract involving acquisition, divestiture, transfer or sale of all or a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services material portion of the Companycapital stock or other equity interests, business, operations, assets or rights of any of the Acquired Companies from or to any other Person (A) entered into in the past five (5) years, and (B) pursuant to which the Acquired Companies have continuing “earn-out”, other contingent payment, indemnification, purchase price adjustment or other obligations, in each case, that would reasonably be expected to result in payments in excess of $1,500,000;
(xii) any is a Contract involving commitments to make for capital expenditures or the acquisition or construction of fixed assets requiring or otherwise committing to Contractthe future payment, purchase expenditure or sell assets involving purchases by any of the Acquired Companies of an amount in excess of $100,000 or more1,500,000;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertya Related Party Contract;
(xiv) relates to a settlement or compromise of any pending or threatened Action relating to the Company Intellectual Property AgreementsAcquired Business for an amount in excess of $750,000; and
(xv) is, or contains, a commitment to enter into any of the foregoing. Each Contract required to be set forth in Schedule 3.8 of the Disclosure Letter (excluding any Contract disclosed in Part 2.14(fSeller Employee Plan) is referred to herein as a “Material Contract”. True, correct and complete copies (including all amendments and supplements thereto) of the Company Disclosure Scheduleeach Material Contract have been made available to Purchaser or its Representatives.
(b) that contains a change in control clause or similar provision that Except as would be not reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000be, individually or in the aggregate; and
, material to the Acquired Business, taken as a whole, (xvii) any Contract not otherwise listed or required to be listed other than expirations after the date of this Agreement in Part 2.9(a) accordance with the terms of the Company Disclosure Schedule (including Company Intellectual Property Agreements) thatapplicable Material Contract, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Material Contracts is valid and binding on an Acquired Company Disclosure Scheduleand, such Material Contract is, to the Knowledge as of the CompanyClosing, will constitute the valid and legally binding and enforceable against the obligation of an Acquired Company and, to the Knowledge of Seller or any of the CompanyAcquired Companies, each other party thereto, and is in full force and effect and enforceable against each party thereto other than the Company, applicable counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (Aii) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, andneither Seller nor, to the Knowledge of the CompanySeller, no any Acquired Company has received notice from any other party to a Material Contract that such other party intends to terminate, not renew or renegotiate in any material respects the terms of any such Material Contract, (iii) there is no breach or default under any Material Contract is in violation of any provision, by either Seller or taken or failed to take any act which, the applicable Acquired Company and no event has occurred that with or without notice, the lapse of time, time or both, the giving of notice or both would constitute a default under or breach thereunder by either Seller or the provisions of any Material Contract. Since January 1, 2021, the applicable Acquired Company has not received any written notice or, and (iv) to the Knowledge of Seller, there are no and, since the CompanyLookback Date, other communication regarding have not been any actual material disputes or possible violation or breach of, or default under, indemnity claims with respect to any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Sources: Stock Purchase Agreement (Nn Inc)
Material Contracts. (a) Part 2.9(a) Except for this Agreement, Section 4.17 of the Company Disclosure Schedule lists each Contract (other than any Company Plan set Letter sets forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, a list as of the date Agreement Date of this Agreement each Contract to which the Company or any of the Company Subsidiaries is a party to or bound by which any of (other than a Contract solely between or among the Company and its properties or assets are otherwise bound wholly owned Company Subsidiaries) (each of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the being a “Company Disclosure Schedule, the “Material ContractsContract”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments would be required to be filed by or to the Company in excess as a “material contract” pursuant to Item 601(b)(10) of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for Regulation S-K promulgated by the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticeSEC;
(ii) any Contract relating is with a related person (as defined in Item 404 of Regulation S-K of the Securities Act) that would be required to the acquisition or disposition by be disclosed in the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of BusinessSEC Reports;
(iii) that relates to the formation, creation, governance, economics or control of any guarantyjoint venture, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity partnership or other hedging or swap Contractsimilar arrangement;
(iv) that is for the acquisition or disposition of any material business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), or that contains a material right of first negotiation, right of first refusal or similar right, in each case entered into since January 1, 2019;
(v) that is relating to the borrowing or lending of Indebtedness in a principal amount in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset);
(A) any Contract creating (excluding purchase orders entered into in the ordinary course of business the forms of which have been made available to Parent) that is one of the top 10 Contracts for the purchase of materials, supplies, goods, services, equipment or purporting to create any partnershipother assets, alliance or joint venture or any sharing of profits or losses measured by aggregate payments made by the Company with any Third Party; or the Company Subsidiaries during the fiscal year ended December 31, 2021 or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers purchase orders entered in into in the Ordinary Course ordinary course of Business);
(vbusiness the forms of which have been made available to Parent) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which customer of the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) any Company Subsidiaries who in excess the fiscal year ended December 31, 2021, was one of $100,000 annuallythe 10 largest sources of revenues for the Company and its Subsidiaries, based on amounts paid or payable;
(vii) any Contract that is a settlement, conciliation, containing any grant of any license or similar agreement with any Governmental Body covenant not to assert relating to or that imposes any monetary or other material obligations upon under Intellectual Property Rights (A) by the Company or any Company Subsidiary to a third party or (B) by a third party to the Company or any Governmental Body after the date Company Subsidiary, excluding licenses of this Agreementnon-customized off-the-shelf Software commercially available on standard terms for an annual fee of no more than $500,000;
(viii) all joint venturethat contains (A) any covenant that purports to materially limit or otherwise restrict the ability of the Company or the Company Subsidiaries to compete in any business or geographic area or to use or exploit any material Company Owned Intellectual Property, partnership a (involving sharing B) “most favored nation” clause or other term providing preferential pricing or treatment to a third party, (C) material minimum purchase obligations on the Company or any of profitsthe Company Subsidiaries or (D) any right of first negotiation, right of first refusal or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)right;
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; with any Affiliate, director, executive officer (C) any Contract that includes minimum purchase conditions or other requirements, as such term is defined in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual PropertyExchange Act), installment, and conditional sale agreement holder of 5% or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) more of Equity Interests of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, any of their Affiliates (other communication regarding any actual than the Company) or possible violation or breach of, or default under, any Material Contract immediate family members (other than offer letters that can be terminated at will without severance obligations and Contracts pursuant to Company Options);
(x) that is a settlement agreement that (A) requires payment by the Company. Company or any of the Company Subsidiaries after the date hereof in excess of $500,000 or (y) imposes non-monetary obligations or restrictions on the Company or any of its Subsidiaries after the date of this Agreement which obligations or restrictions which would apply to Parent or its Affiliates following the Closing;
(xi) that is a Contract with a Governmental Authority;
(xii) any Velocity Transaction Document;
(xiii) that is a CBA; and
(xiv) the Financing Agreement.
(b) The Company has made available to Parent true and complete correct copies of each such Company Material Contract in all material respects effect as of the Agreement Date. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (including all modificationsi) each of the Company Material Contracts is in full force and effect, amendments and supplements thereto represents a valid and waivers thereunderbinding obligation of the Company or a Company Subsidiary, but not including purchase orders enforceable in accordance with its terms against the Company or the Company Subsidiary (as the case may be), to the Knowledge of the Company, each other party thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and similar confirmatory documents not specific general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity), (ii) neither the Company nor any Company Subsidiary nor, to provisions that make the Company’s Knowledge, any other party to such Contract a Company Material Contract), is in breach of or default (or, to the Knowledge of the Company, has received notice of an alleged breach or default) under any Company Material Contract and, neither the Company nor any Company Subsidiary nor, to the Company’s Knowledge, any other party to such Company Material Contract, has taken or failed to take any action that with or without notice, lapse of time or both would constitute a breach of or default under any Company Material Contract, (iii) since January 1, 2021 through the Agreement Date, neither the Company nor any Company Subsidiaries have received any written notice regarding any violation or breach or default under any Company Material Contract that has not since been cured and (iv) neither the Company nor any Company Subsidiaries have waived in writing any rights under any Company Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Merger (TherapeuticsMD, Inc.)
Material Contracts. (a) Part 2.9(a) Schedule 4.14 sets forth all of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following Contracts to which the Company is a party or by which it is bound (collectively, the "Material Contracts"): (i) Contracts with any of the Sellers or any current officer or director of the Company; (ii) Contracts with any labor union or association representing any employee of the Company; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets of the Company other than in the ordinary course of business or for the grant to any person of any preferential rights to purchase any of its properties or assets are otherwise bound of the following categories assets; (such v) joint venture agreements; (vi) Material Contracts required to be disclosed under Part 2.9(a) containing covenants of the Company Disclosure Schedule, the “Material Contracts”):
(i) not to compete in any Contract (line of business or group with any person in any geographical area or covenants of related Contracts), any other than a Company Plan, that requires future payments by or person not to compete with the Company in excess any line of $100,000 business or in any calendar year, including any such Contract geographical area; (or group of such vii) Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (the capital stock of any other than pursuant to non-exclusive licenses or grants of non-exclusive rights)person; (Bviii) any Contract Contracts relating to the acquisition or disposition by the Company borrowing of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options)money; or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdictionContracts, other than Real Property Leases, which involve the expenditure of more than $5,000 in the aggregate or $1,000 annually or require performance by any such covenant set forth in this Agreement or party more than one year from the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year date hereof. There have been made available to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person isPurchaser, or could become, entitled to any benefit, right or privilege which, under the terms its affiliates and their representatives true and complete copies of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services all of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) Material Contracts. All of the Company Disclosure Schedule) that contains a change Material Contracts and other agreements are in control clause or similar provision that would be reasonably be expected to be triggered in connection with full force and effect and are the consummation of the Contemplated Transactions legal, valid and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge binding obligation of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, it in accordance with its terms, subject to (A) Laws of general application relating to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and the relief similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of debtors and equity (B) rules regardless of Law governing specific performance, injunctive relief and other equitable remedieswhether enforcement is sought in a proceeding at law or in equity). Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectas set forth on Schedule 4.14, the Company is not in violation of default in 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 material respect under the provisions of, any Material ContractContracts, andnor, to the Knowledge knowledge of the Companyany Representing Seller, no is any other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all default thereunder in any material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)respect.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) of On the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of Signing Date and the Company Disclosure Schedule) that is in effectRegistration Date, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement to which the Company is not a party to or by which any of its properties or assets are otherwise not bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):by:
(i) any Contract agreement for the purchase or lease of materials (or group of related Contractsexcept wafer ), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materialssupplies, goods, commoditiesservices, utilities, equipment, supplies, products equipment or other personal property, assets that provides for annual payments by the Company of US$1,000,000 or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter noticemore ;
(ii) any Contract relating to sales, distribution or other similar agreement providing for the acquisition or disposition sale by the Company of any operating business materials, supplies, goods, services, equipment or other assets (other than pursuant that provides for annual payments to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business US$1,000,000 or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Businessmore;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contractcollective bargaining agreement;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business)similar agreement;
(v) any collective bargaining agreement contract relating to (x) the acquisition of any business or similar Contract with a substantial portion of the assets of any trade unionbusiness or (y) the disposition of all or a substantial portion of the assets of the Company (whether by merger, works council sale of equity interests, sale of capital stock, sale of assets or other labor organizationotherwise);
(vi) any offer letteragreement relating to indebtedness for borrowed money, employment including any pledge, guarantee, security agreement, independent contractor agreement mortgage or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallysimilar Encumbrance;
(vii) any Contract that is a settlementmaterial license, conciliation, franchise or other similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon relating to Intellectual Property (save and except for Technology Transfer and Assistance Agreement entered into as of the Signing Date by the Transferor and Company to any Governmental Body after the date of this Agreement;); Execution copy August 6, 2007
(viii) all joint ventureany material agency, partnership (involving sharing of profits) dealer, sales representative, marketing or other similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products)agreement;
(ix) any Contract under which material agreement with any Governmental Body has any material rights;
(A) any Contract containing covenants restricting director, officer or purporting to restrict competition which, in either case, have, would have or purport to have the effect key employees of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements except for labor contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xvx) any Contract (excluding material agreement between the Company, on the one hand, and the Transferor or any Contract disclosed in Part 2.14(f) Subsidiary or Affiliate of the Transferor or other Person in which any of the foregoing has a direct or indirect interest, on the other hand (except the General Service Agreement between the Company Disclosure Schedule) that contains a change and the Transferor, which will be terminated before the Registration Date and any agreement otherwise agreed in control clause or similar provision that would be reasonably be expected the Transaction Documents, including but not limited to the Technology Transfer and Assistance Agreement and the Packaging and Testing Services Agreement to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments entered by the Company or and the Transferor, and any successor thereto in excess of $100,000, individually or agreement otherwise agreed in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material ContractTransaction Documents).
Appears in 1 contract
Sources: Equity Interests Transfer Agreement (Advanced Semiconductor Engineering Inc)
Material Contracts. (a) Part 2.9(a) Except as disclosed in Section 5.15 of the ------------------ Company and Shareholder Disclosure Memorandum or otherwise reflected in the Company Financial Statements, none of the Company Disclosure Schedule lists each Contract (other than Entities, nor any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effecttheir respective Assets, and that has not expired businesses or been terminated in accordance with its termsoperations, as of the date of this Agreement to which the Company is a party to, or by which any of its properties is bound by, or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedulereceives benefits under, the “Material Contracts”):
(i) any employment, severance, termination, consulting, or retirement Contract (or group of related Contracts), other than a Company Plan, that requires future providing for aggregate payments by or to the Company any Person in any calendar year in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
50,000; (ii) any Contract relating to the acquisition borrowing of money by any Company Entity or disposition the guarantee by the any Company Entity of any operating business or assets such obligation (other than pursuant Contracts evidencing trade payables and Contracts relating to non-exclusive licenses borrowings or grants guarantees made in the ordinary course of non-exclusive rightsbusiness); (Biii) any Contract which prohibits or restricts any Company Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person; (iv) any Contract with, between or among Company Entities, or any Affiliate thereof; (v) any Contract involving Intellectual Property used by any Company Entity in the course of its business (other than Contracts entered into in the ordinary course with customers and "shrink-wrap" software licenses); (vi) any Contract relating to the acquisition provision of data processing, network communication, or disposition other technical services to or by any Company Entity requiring payments by any Company Entity in excess of $50,000 in any calendar year; (vii) any written Contract relating to the Company purchase or sale of any operating business goods or assets services (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course ordinary course of Business;
(iii) business and involving annual payments under any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any individual Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually ); and (viii) any oral Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the aggregate; and
(xvi) ordinary course of business and involving annual payments under any individual Contract not otherwise listed or required in excess of $50,000) (together with all Contracts referred to be listed in Part 2.9(a) of Sections 5.9 and 5.14(a), the "Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) Contracts"). With respect to each Material Company Contract listed and except as disclosed in Part 2.9(a) Section 5.15 of the Company and Shareholder Disclosure Schedule, Memorandum: (i) the Contract is in full force and effect; (ii) no Company Entity is in Material Default thereunder; (iii) no Company Entity has repudiated or waived any Material provision of any such Material Contract; and (iv) no other party to any such Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws Default in any Material respect or has repudiated or waived any Material provision thereunder. All of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation indebtedness of any provision of, Company Entity for money borrowed is prepayable at any time by such Company Entity without penalty 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)premium.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) The Company has delivered or otherwise made available to AGT true, correct and complete copies of the Company Disclosure Schedule lists each Contract all contracts and agreements (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effectand all amendments, modifications and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement supplements thereto and all side letters to which the Company 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 its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or are material to the Company in excess of $100,000 in any calendar yearbusiness, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property properties or assets of the Company and its subsidiaries taken as a whole, including, A-14 19 without limitation, (excluding Permitted Liens); (CI) contracts or agreements with any Contract (1) relating to any loan supplier or advance to any Person customer, in each case which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants could result in the Ordinary Course payment or receipt of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) monies in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 2,500,000 in any calendar year period; (II) to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000following are, individually or in the aggregate; and
(xvi) any Contract not otherwise listed , material to the business, properties or required to be listed in Part 2.9(a) assets of the Company Disclosure Schedule and its subsidiaries taken as a whole, all:
(including i) employment, product design or development, personal services, consulting, non-competition, severance or indemnification contracts (including, without limitation, any contract to which the Company Intellectual Property Agreementsor any of its subsidiaries is a party involving employees of the Company or any of its subsidiaries); (ii) thatlicensing, if terminatedmerchandising or distribution agreements; (iii) contracts granting a right of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale, lease or if other disposition of material properties or assets of the Company or its subsidiaries or predecessors (by merger, purchase or sale of assets or stock or otherwise) entered into since April 1, 1995 and (vi) contracts or agreements with any Governmental Entity and (III) all commitments and agreements to enter into any of the foregoing items in (I) or (II) above (collectively, together with any such Contract expired without being renewedcontracts entered into in accordance with Section 5.1 hereof, would have a Company Material Adverse Effectthe "Contracts").
(b) With respect to each Material Contract listed in Part 2.9(a) Each of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding Contracts is valid and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to applicable bankruptcy, insolvency insolvency, fraudulent conveyance, reorganization, moratorium and the relief of debtors similar laws affecting creditors' rights and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadremedies generally, and would reasonably be expected subject, as to haveenforceability, individually to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in the aggregateequity), a Company Material Adverse Effect, and there is no default under any Contract so listed either by the Company is not in violation or, to the knowledge of the Company, by any provision ofother party thereto, or taken or failed to take any act which, and no event has occurred that with or without notice, the lapse of time, time or both, the giving of notice or both would constitute a default under thereunder by the provisions of, any Material Contract, andCompany or, to the Knowledge knowledge of the Company, no any other party, in any such case in which such default or event would have a Material Adverse Effect on the Company.
(c) No party to any such Material Contract is in violation of any provision, or taken or failed has given notice to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of any Material Contract. Since January 1, 2021, the Company has not received of or made a claim against the Company with respect to any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default underthereunder, in any such case in which such breach or default would have a Material Contract by Adverse Effect on the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)Section 3.18.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSchedule 3.12(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth purchase orders) in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, effect as of the date of this Agreement Date to which the any Acquired Company is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) (a) any Contract (or group of related Contracts)) with a merchant or strategic partner of the Acquired Companies that generated $12,000,000 or more of originations during the twelve-month period ended September 30, other than a Company Plan, 2021 and (b) any Contract (or group of related Contracts) that requires require future payments by or to the Company Acquired Companies in excess of $100,000 1,000,000 in any calendar year, including any such Contract (or group of such Contracts that are relatedrelated Contracts) for the purchase, lease purchase or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of servicesservices (except for any offer letters or employment agreements entered into in the ordinary course of business with Company Employees), in each the case to the extent the Contract of clause (b), that is not terminable without penalty on 90 days’ or shorter notice;
(ii) (A) any Contract relating entered into during the Lookback Period pursuant to the acquisition or disposition by the which any Acquired Company of acquired any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsmaterial assets, in each case, other than any such Contracts entered into in the Ordinary Course ordinary course of Businessbusiness (including pursuant to financing agreements, leases and commercial agreements with suppliers and/or with respect to the sale, distribution or licensing of products by the Acquired Companies);
(iiiA) any monetary guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the any Acquired Company; (B) any Contract evidencing or relating to Debt Indebtedness of the any Acquired Company or providing for the creation of or granting any Lien upon any of the property or assets of the any Acquired Company (excluding Permitted LiensEncumbrances); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (DC) any currency, commodity or other hedging or swap Contract;
(iv) (A) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the any Acquired Company with any Third Partythird party; or (B) any Contract that provides for “earn-outs” or other similar contingent payments by or to any Acquired Company for the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course deferred purchase price of Business)property or services;
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body Entity has any material rights;
(vi) (A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, which have, or would have or purport to have have, the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity any Acquired Company from engaging in any business or activity in any geographic area or other jurisdictionjurisdiction (but excluding, other than any such covenant set forth for the avoidance of doubt, nondisclosure agreements entered into (1) in the ordinary course of business consistent with pas practice or (2) in connection with this Agreement or the agreements ancillary heretoAgreement); (B) any Contract in which the any Acquired Company has granted “exclusivity” or that requires the any Acquired Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contractPerson; (C) any Contract that includes minimum purchase conditions or other requirements, in either case obligations on the part of the Acquired Companies that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” or “best pricing” or other similar term or provision by which another party to such Contract or any other Person (excluding for the avoidance of doubt, the Acquired Companies) is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to must be at least as favorable to such party as those offered to another Person;
(vii) any Contract with a Top Vendor or involving a distributor or reseller (excluding, for the avoidance of doubt, merchants) pursuant to which the Acquired Companies received payments in excess of $500,000 in the aggregate during the twelve months ended September 30, 2021;
(viii) any Contract involving commitments by the Acquired Companies to make unbudgeted capital expenditures or to purchase or sell assets involving $500,000 or more individually in any calendar year;
(ix) any Real Property Lease;
(x) any (a) management or employment or other similar type of Contract with a natural person that is an employee of the Acquired Companies and provides for annual base salary compensation in excess of $150,000 (excluding for the avoidance of doubt, offer letters provided to employees in the ordinary course of business) and (b) any service, consulting or independent contractor or other similar type of Contract with a natural person and providing for compensation in any calendar year in excess of $150,000, and (c) any Contract that provides for severance obligations in excess of $100,000 to an employee of the Acquired Companies;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services (other than any organizational document of the Acquired Company;) providing for the indemnification of any current or former director, officer or employee of any Acquired Company; or
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold explicitly provides for payments or other interest benefits to a third-party that are conditioned on or directly result from, in any real whole or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains part, a change in of control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectAcquired Company.
(b) With respect to each Material Contract listed in Part 2.9(aSchedule 3.12(a): (i) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of Company’s Knowledge, with respect to each party thereto other than the applicable Acquired Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each such party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, ; and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the (ii) no Acquired Company is not in violation material breach or material default of any provision of, or taken or failed to take any act whichsuch Material Contract or, with the giving of notice or the giving of notice and passage of time without noticea cure would be, lapse in material breach or material default of time, or both, would constitute a default under the provisions of, any such Material Contract, and, and to the Knowledge of the Company’s Knowledge, no other party to such Material Contract is in violation material breach or material default of any provision, 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 any such Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent or its counsel a true and complete copies copy of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract).
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 3.14(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termssets forth, as of the date of this Agreement agreement, the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is otherwise bound that are currently in force or pursuant to which the Company or any of its properties Subsidiaries currently has any outstanding obligations or assets Liabilities and that are otherwise bound included within any of the following categories (such excluding any Contract that is or relates to an Employee Benefit Plan) (Contracts of the type required to be disclosed under Part 2.9(aso listed on section 3.14(a) of the Company Disclosure Schedule, regardless of the date of the agreement, are referred to herein as the “Material Contracts”):
(i) any Contract (Contracts required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or group of related Contracts), other than a Company Plan, that requires future payments disclosed by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty a Current Report on 90 days’ or shorter noticeForm 8-K;
(ii) Contracts with (A) any Contract relating officer, director or Affiliate of the Company or any of its Subsidiaries, including indemnification agreements, that have any continuing obligations as of the date of this agreement, or (B) to the acquisition Knowledge of the Company, any beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of 5% or more of the shares of Company Common Stock;
(iii) Stockholder agreements, investors’ rights agreements, voting agreements, voting trusts, rights of first refusal and co-sale agreements or registration rights agreements or any Contracts with respect to the issuance, sale, transfer or other disposition of any equity or debt security of the Company or any of its Subsidiaries;
(iv) Contracts that (A) provides for the authorship, invention, creation, conception or other development by the Company or any Subsidiary for any other Person, or for the Company or any Subsidiary by any other Person, of any operating business Intellectual Property or assets Intellectual Property Rights (other than pursuant to non-exclusive licenses or grants of non-exclusive rightsincluding any joint development); (B) any Contract relating provides for the assignment or other transfer to the acquisition Company or disposition any Subsidiary from any other Person, or by the Company or any Subsidiary to any other Person, of any operating business ownership interest in Intellectual Property or assets Technology (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which provided that the Company has any executory covenants need not list all Invention Assignment Agreements entered into by Table of Contents employees, contractors or indemnification consultants of the Company or other obligations or rights (including put or call optionsits Subsidiaries on forms that are materially the same as a standard form Contract made available to Parent); or (C) constitute a material Intellectual Property Contract, (excluding (1) Contracts granting customers, distributors, OEMs or resellers non-exclusive licenses to Company Products that were entered into in the Ordinary Course of Business on forms that are materially the same as a standard form Contract made available to Parent, (2) inbound Open Source Licenses, and (3) licenses for generally available off-the-shelf software that is available on standard terms through commercial distributors, in consumer retail stores or through online distribution sources for a license fee of less than $75,000 annually);
(v) any Company Data Contract under pursuant to which the any Person is authorized to use, disclose or otherwise process any material Company have Data that materially deviate from any indemnification obligationsform Company Data Contract made available to Parent, other than excluding any such Contracts entered into in the Ordinary Course of Business;
(iiivi) Contracts of the Company or its Subsidiaries under which Company or any of its Subsidiaries grant, or is granted, any immunity, authorization, covenant not to ▇▇▇, license, sublicense or other right to practice Patents;
(vii) Contracts (excluding any Contract to which Parent but not the Company or its Subsidiaries is a party) that following Closing would or would purport to require any existing or future Subsidiaries or Affiliates of the Company or its Subsidiaries, including Parent, to grant to any Person (or to be bound by): (A) any guarantyexpress license, surety right or performance bond covenant not to ▇▇▇ or letter of credit issued or posted, as applicable, by the Company; (B) any Contract exclusive rights, noncompetition rights, rights of refusal or rights of first;
(viii) Contracts for the purchase and sale of any real property, Personal Property Leases and Real Property Leases;
(ix) loan or credit agreements, indentures, notes or other Contracts or instruments evidencing or relating to Debt of indebtedness by the Company or providing for any of its Subsidiaries or Contracts or instruments pursuant to which indebtedness may be incurred or is guaranteed by the creation Company or any of its Subsidiaries, or granting any mortgages, pledges, security agreements, deeds of trust or other Contracts imposing a Lien upon (other than a Permitted Lien) on any of the property Company’s or assets any of its Subsidiaries’ assets;
(x) Contracts under which the Company (excluding Permitted Liens); (C) or any Contract (1) relating of its Subsidiaries has made advances or loans to any loan or advance other Person, except for advances of business expenses of up to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants $500,000 in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(ivxi) Contracts relating to any Contract creating single or purporting to create any partnership, alliance or joint venture or any sharing series of profits or losses related capital expenditures by the Company with or any Third Party; of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has future financial obligations in excess of $1,000,000;
(xii) Contracts for (A) the sale of any of the business, properties or assets of the Company or any of its Subsidiaries other than in the Ordinary Course of Business, (B) the grant to any Contract that provides for “earn-outs” Person of any preferential rights to purchase any of its properties or other contingent payments assets or (C) the acquisition by or to the Company that have not yet been paid to or any of its Subsidiaries of any operating business, properties or assets, whether by merger, purchase or sale of stock or assets or otherwise (other than Contracts for the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers purchase of inventory or supplies entered in into in the Ordinary Course of Business);
(vxiii) Contracts that grant to any collective bargaining agreement or similar Contract with any trade union, works council or Person other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which than the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess any of $100,000 annually;
(vii) its Subsidiaries any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition whichexclusive license, in either casesupply, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area distribution or other jurisdictionrights, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivitymost favored nation” or that requires the Company to deal exclusively withrights, or grant exclusive rights or (C) rights of first refusal torefusal, any customer, vendor, supplier, distributor, contractor rights of first negotiation or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; similar rights or (D) exclusive rights to purchase any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures ’s or to Contract, purchase its Subsidiaries’ products or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal propertyservices;
(xiv) the Company Intellectual Property Agreements; and
Contracts (xv) any Contract (excluding any Contract other than employment-related Contracts required to be disclosed in Part 2.14(fon section 3.15(a) of the Company Disclosure ScheduleSchedule and licenses for off-the-shelf software) that contains a change in control clause providing for any minimum Table of Contents or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in guaranteed payments by the Company or any successor thereto of its Subsidiaries to any Person in excess of $100,0001,000,000 annually;
(xv) Contracts for joint ventures, individually joint development, joint marketing, strategic alliances or in the aggregate; andpartnerships;
(xvi) Contracts that purport to (A) limit, curtail or restrict the ability of the Company or any Contract not otherwise of its existing or future Subsidiaries or Affiliates, including Parent, to compete in any geographical area, market or line of business or (B) restrict the Persons to whom the Company or any of its existing or future Subsidiaries or Affiliates, including Parent, may sell products or deliver services;
(xvii) Contracts relating to the settlement of any Legal Proceeding or other administrative or judicial proceeding entered into in the three year period immediately preceding the date of this agreement (other than a separation and release agreement entered into with a departing employee or consultant);
(xviii) Contracts with any foreign sales agent or foreign sales representative;
(xix) Any Government Contract;
(xx) Any Contracts relating to indebtedness and having an outstanding principal amount in excess of $1,000,000; or
(xxi) Contracts between the Company or any of its Subsidiaries and any Top Customer or Top Channel Partner. (b) Each of the Material Contracts listed or required to be listed in Part 2.9(aon section 3.14(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With is in full force and effect with respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company its Subsidiaries and, to the Knowledge of the Company, each other party thereto, and is the legal, valid and binding obligation of the Company and its Subsidiaries, enforceable against each party thereto other than the Company and its Subsidiaries in accordance with its terms and, to the Knowledge of the Company, is the legal, valid and binding obligation of each other party thereto, enforceable against such party in accordance with its terms, in each case subject to (A) Laws of general application relating to applicable bankruptcy, insolvency insolvency, reorganization, moratorium and the relief similar Laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general defenses and principles of debtors and equity (B) rules regardless of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually whether enforcement is sought in a proceeding at law or in the aggregate, a Company Material Adverse Effect, equity). Neither the Company nor any of its Subsidiaries is not in violation material default or material breach under the terms of any provision ofMaterial Contract, or taken or failed nor, to take the Knowledge of the Company, does any act whichcondition exist that, with notice or without notice, lapse of time, time or both, would constitute a material default under or material breach thereunder by the provisions of, Company or any Material Contract, and, to of its Subsidiaries. To the Knowledge of the Company, no other party to such any Material Contract is in violation material default or material breach thereunder, nor, to the Knowledge of the Company, does any provision, condition exist that with notice or taken or failed to take any act which, with or without notice, lapse of time, time or both, both would constitute a material default or material breach by any such other party thereunder. Neither the Company nor any of its Subsidiaries has received any written, or to the Knowledge of the Company, oral notice of termination, cancellation or intent not to renew under the provisions of any Material Contract. Since January 1, 2021, the Company has not Contract or received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or oral notice of breach of, or default under, under any Material Contract by the CompanyContract. The Company has made available to Parent true true, correct and complete copies of each such all written Material Contracts (or a written description of the material terms of any Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but that is not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contractwritten).
Appears in 1 contract
Sources: Merger Agreement (Vmware, Inc.)
Material Contracts. (a) Part 2.9(aSection 2.09(a) of the Company Disclosure Schedule lists each Contract (other than any Company Plan set Letter sets forth in Part 2.15(a) a correct and complete list of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as of the date of this Agreement following Contracts to which the Company is a party or by under which any of its properties or assets are otherwise bound of the Company has continuing Liabilities that fall within the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedulecollectively, the “Material Contracts”):
(i) any Contract for the purchase of services or products providing for either (or group of related Contracts), other than a Company Plan, that requires future A) annual payments by or to the Company in excess of $100,000 50,000 or more; or (B) anticipated receipts by the Company of more than $50,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating that provides for indemnification by the Company entered into outside of the Ordinary Course of Business;
(iii) any employment, change of control, severance, consulting or restrictive covenant Contract with any current or former (A) officer, director or manager of the Company, (B) any Employee (other than oral employment Contracts terminable at will without any further obligation of the Company), or (C) independent contractor;
(iv) any Contract that relates to the sale of any of the Company’s assets, other than in the Ordinary Course of Business;
(v) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which the Company has continuing obligations following the date hereof;
(vi) any Contract relating to any Indebtedness of the Company or any other Person whereby the Company guarantees such Indebtedness;
(vii) any Contract with any Governmental Authority;
(viii) any Contract that limits, purports to limit, impedes, interferes with or restricts the ability of the Company or its Affiliates to (A) compete with any Person in a product line or any line of business, (B) operate in any geographic area, (C) engage in any line of business, or (D) solicit for employment, hire or employ any Person;
(ix) any Contract that provides for a joint venture, partnership or similar arrangement by the Company;
(x) any collective bargaining agreements or Contracts with any labor organization, union or association;
(xi) any lease or sublease related to the Leased Real Property;
(xii) any material option, license, franchise or similar Contract;
(xiii) any Contract that obligates the Company of to conduct business on an exclusive or preferential basis, that contains a “most favored nation” or similar covenant with any operating business Person or assets that contains requirements, “take or pay” or similar provisions binding on the Company;
(xiv) any Contract pursuant to which the Company grants or is granted a license or right to use, or covenant not to be sued under, any Intellectual Property Rights other than pursuant to (A) licenses for commercially available Software that are generally available on nondiscriminatory pricing terms which have an aggregate annual cost of $50,000 or less, and (B) non-exclusive licenses granted to, or by, the Company in the Ordinary Course of Business;
(xv) any Contracts between or among the Company, on the one hand, and Seller, any Member or any Affiliate of Seller or any Member, on the other hand;
(xvi) any Contract pursuant to which a consent or waiver of, or notice to, a counterparty thereto is required in connection with the consummation of the Transactions;
(xvii) any Contract that grants any right of non-exclusive rights); first refusal, right of first offer, or similar right with respect to any assets, rights or properties of the Company;
(Bxviii) any manufacturing Contract;
(xix) any Contract relating to the acquisition distribution, marketing or disposition by advertising of any of the Company of Products;
(xx) any operating business Contract between the Company, on the one hand, and any distributors, manufacturers’ agents or assets (selling agents, on the other than hand, or pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants sells or indemnification distributes products or other obligations or rights pays a commission to a Person with respect to the sale of the Company Products;
(including put or call options); or (Cxxi) any Contract under which the Company have any indemnification obligationswith a Material Customer, other than any such Contracts purchase orders entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (Bxxii) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (with a Material Supplier other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers purchase orders entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xvxxiii) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract which is not otherwise listed or required described in clauses (i)-(xxii) above that is material to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse EffectCompany.
(b) With respect to each Material Contract listed in Part 2.9(a) Correct and complete copies of the Company Disclosure Schedule, such Material Contract is, Contracts have previously been made available to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remediesBuyer. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the The Company is not in violation of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract and there is no event or condition that, with or without notice or lapse of time or both, could constitute a breach or default by the CompanyCompany under any Material Contract. The Company has made available To Seller’s Knowledge, no other party to Parent true and complete copies of each such any Material Contract is in all material respects (including all modificationsbreach of, amendments or default under, any Material Contract and supplements thereto and waivers thereunderthere is no event or condition that, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract with or without notice or lapse of time or both, could constitute a breach or default by any other party under any Material Contract). Each of the Material Contracts is in full force and effect, is a legal, valid and binding obligation of the Company and enforceable against the Company, and, to Seller’s Knowledge, against the other parties thereto, in accordance with its terms, except as enforceability may be limited by the Enforceability Exception. There has not been any written notice or, to Seller’s Knowledge, threat to terminate any Contract to which the Company is a party. To Seller’s Knowledge, no event has occurred which (with or without notice or lapse of time or both) permits any termination, modification or acceleration of payment, or requires any payment, under any Contract to which the Company is a party.
Appears in 1 contract
Sources: Unit Purchase and Contribution Agreement (Hydrofarm Holdings Group, Inc.)
Material Contracts. (a) Part 2.9(a) Section 4.18 of the Company Disclosure Schedule lists each Contract (other than any sets forth a list of all Material Contracts. The Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effecthas heretofore made available to Parent true, correct, and that has not expired or been terminated in accordance with its termscomplete copies of all written, as and summaries of the date of this Agreement all oral, contracts 27 35 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 its assets or properties are bound that are material to the business, assets, or assets are otherwise bound properties of the Company and its subsidiaries taken as a whole, including, to the extent any of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to haveare, individually or in the aggregate, material to the business, assets, or properties of the Company and its subsidiaries taken as a whole, all: (i) employment, severance, product design or development, personal services, consulting, non-competition, or indemnification contracts (including, any contract to which the Company Material Adverse Effector any of its subsidiaries is a party involving employees of the Company or any of its subsidiaries); (ii) supply, purchase, licensing, merchandising, or distribution agreements; (iii) contracts granting a right of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale, or lease of material assets or properties of the Company (by merger, purchase or sale of assets or stock, or otherwise) entered into since December 1, 1997; (vi) contracts or agreements with any Governmental Entity; (vii) loan or credit agreements, mortgages, indentures, or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries or any such agreement pursuant to which indebtedness for borrowed money may be incurred; (viii) agreements that purport to limit, curtail, or restrict the ability of the Company or any of its subsidiaries to compete in any geographic area or line of business; (ix) contracts or agreements that would be required to be filed as an exhibit to a Form 10-KSB filed by the Company with the SEC on the date hereof; (x) any other contract or agreement providing for annual payments to or by the Company or any of its subsidiaries for goods or services in excess of $250,000 (or the foreign currency equivalent thereof); and (xi) commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 6.1, the "MATERIAL CONTRACTS"). Neither the Company nor any of its subsidiaries is not in violation a party to or bound by any severance or other agreement with any employee or consultant pursuant to which such person would be entitled to receive any additional compensation or an accelerated payment of any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute compensation as a default under the provisions of, any Material Contract, and, to the Knowledge result of the Company, no other party to such Material Contract is in violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge consummation of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true and complete copies of each such Material Contract in all material respects (including all modifications, amendments and supplements thereto and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)transactions contemplated hereby.
Appears in 1 contract
Material Contracts. (a) Part 2.9(aSection 3.16(a) of the Company LG Parent Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its termslists, as of the date of this Agreement Agreement, the following types of Contracts to which any Studio Entity or any of its Subsidiaries or, to the Company extent exclusively related or otherwise material to the Studio Business, LG Parent or any of its Subsidiaries, is a party or by which any of its properties or assets are otherwise bound of the following categories (such Contracts as are required to be disclosed under Part 2.9(aset forth on Section 3.16(a) of the Company LG Parent Disclosure Schedule, Schedule being the “Material Contracts”):). As of the date of this Agreement, LG Parent has made available to SEAC true and complete copies of all Material Contracts, including amendments thereto that are material in nature.
(i) each Contract involving aggregate payments to any Contract (Studio Entity or group any of related Contracts), other than a Company Plan, that requires future payments by or to the Company its Subsidiaries in excess of $100,000 in 50 million over any calendar year, including any such Contract twelve (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice12)-month period;
(ii) any Contract relating Contracts evidencing Indebtedness of any Studio Entity or any of its Subsidiaries, and any pledge agreements, security agreements or other collateral agreements in which LG Parent or a Studio Entity or any Subsidiary of a Studio Entity granted to any Person a security interest in or Lien on any of the material property or assets related to the acquisition or disposition by the Company of any operating business or assets Studio Business, and all Contracts guarantying (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (Bin the Ordinary Course) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification debts or other obligations or rights (including put or call options); or (C) of any Contract under which the Company have any indemnification obligationsPerson, in each case, in excess of $50 million, other than Contracts that are solely among LG Parent or any such Subsidiary of LG Parent and any other Subsidiary of LG Parent;
(iii) each Contract involving the pending or contemplated acquisition or sale of (or option to purchase or sell) any material amount of the assets or properties of the Studio Business, taken as a whole, other than Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap ContractCourse;
(iv) any Contract creating or purporting to create any each partnership, alliance or joint venture agreement or any sharing of profits or losses by the Company with any Third Party; or (B) any similar Contract that provides for “earn-outs” or other contingent payments by or material to the Company that have not yet been paid to Studio Business or the Company (excluding any contingent payments arising pursuant to recruiting Studio Entities and its Subsidiaries, taken as a whole, other than customary joint operating agreements for Company Service Providers entered in into in the Ordinary Course of Business)and continuous development obligations;
(v) any collective bargaining agreement or similar Contract all Contracts with any trade unionGovernmental Authority to which a Studio Entity or any of its Subsidiaries is a party, works council or other labor organizationthan any Studio Permits;
(vi) all Contracts that (A) limit, or purport to limit, the ability of the Studio Business to compete in any offer letter, employment agreement, independent contractor agreement line of business or other Contract with any current Company Service Provider Person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and Contracts that contain customary confidentiality clauses, (B) require the Studio Business to conduct any business on a “most favored nations” basis with any third party or (C) provide for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions (x) granted pursuant to which an Excluded License or (y) that are not material to the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annuallyStudio Business, taken as a whole;
(vii) any Contract that is all leases or master leases of personal or real property reasonably likely to result in annual payments of $15 million or more in a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreementtwelve (12)-month period;
(viii) all joint ventureContracts that relate to the direct or indirect issuance, partnership acquisition or disposition of any securities or business (involving sharing whether by merger, issuance or sale of profitsstock, sale of assets or otherwise) and under which there are surviving obligations of any Studio Entity or any of its Subsidiaries, which is (A) in excess of $50 million or (B) contains ongoing indemnification obligations with respect to any material covenants that, in LG Parent’s reasonable judgment, remain unperformed or with respect to material representations, the survival period as to which has not expired, in each case of clause (A) or similar Contracts (and B), except as would not including any sharing of profits by reasonably be expected to be material to the Studio Business, taken as a Third Party with the Company that are based on sales of goods or services other than Company Products)whole;
(ix) each Contract requiring capital expenditures by any Contract under which Studio Entity or any Governmental Body has any material rightsof its Subsidiaries in an amount in excess of $50 million in a twelve (12)-month period;
(Ax) any Contract containing covenants restricting or purporting all Contracts relating to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another PersonStudio Interested Party Transaction;
(xi) all Contracts pursuant to which any Contract involving Studio Entity or any of its Subsidiaries grants or receives a sales agentlicense, representative, distributor, reseller, middleman, marketer, broker, franchisor covenant not to sue or similar Person who right with respect to Intellectual Property that (i) is entitled to receive commissions, fees or markups related material to the provision Studio Business as a whole and is not an Excluded License, or resale (ii) that is reasonably expected to require annual payments to or by the Seller Entities of goods $50 million or services of the Companymore in a twelve (12)-month period;
(xii) all Contracts involving any Contract involving commitments resolution or settlement of any actual or threatened Action or other dispute which require payment in excess of $50 million or impose continuing obligations on the Studio Business, including injunctive or other non-monetary relief, in a manner that would reasonably be expected to make capital expenditures or be material to Contractthe Studio Business, purchase or sell assets involving $100,000 or more;taken as a whole; and
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating outstanding written commitment to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) enter into any Contract of the type described in clauses (excluding any Contract disclosed in Part 2.14(fi) through (xii) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by the Company or any successor thereto in excess of $100,000, individually or in the aggregate; and
(xvi) any Contract not otherwise listed or required to be listed in Part 2.9(a) of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effectthis Section 3.16(a).
(bi) With respect to each Each Material Contract listed in Part 2.9(a) is a legal, valid and binding obligation of the Company Disclosure Scheduleapplicable Studio Entity, such Material Contract is, to the Knowledge LG Parent or Subsidiary of the Company, binding and enforceable against the Company LG Parent and, to the Knowledge knowledge of LG Parent, the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not hadparties thereto, and would reasonably be expected to haveno applicable Studio Entity, individually LG Parent or in the aggregate, a Company Material Adverse Effect, the Company is not in violation Subsidiary of 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, any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract LG Parent is in material breach or violation of any provision, 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 any Material Contract. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract nor has any Material Contract been cancelled by the Company. The Company other party; (ii) to LG Parent’s knowledge, no other party is in material breach or violation of, or default under, any Material Contract; and (iii) neither LG Parent nor StudioCo nor any of their Subsidiaries has made available received any written, or to Parent true and complete copies the knowledge of each LG Parent, oral claim of default under any such Material Contract Contract, except for any such conflicts, violations, breaches, defaults or other occurrences which would not reasonably be expected to result in all material respects (including all modificationsa Studio Material Adverse Effect. Except as would not, amendments and supplements thereto and waivers thereunderindividually or in the aggregate, but not including purchase orders and similar confirmatory documents not specific reasonably be expected to provisions that make such Contract result in a Studio Material Adverse Effect, no party to a Material Contract has given written notice of or, to the knowledge of LG Parent, threatened (A) any potential exercise of termination rights with respect to any Material Contract or (B) any non-renewal or modification of any Material Contract).
Appears in 1 contract
Sources: Business Combination Agreement (Screaming Eagle Acquisition Corp.)
Material Contracts. (a) Part 2.9(aExcept for those agreements and other documents filed as exhibits or incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015 or filed or incorporated in any of its other Company SEC Reports filed since January 1, 2014 and prior to the date hereof, neither the Company nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each, whether or not filed with the SEC, a “Material Contract”): (i) that is a “material contract” within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any other provisions that materially restricts the conduct of, or the manner or location of conducting, any line of business of the Company Disclosure Schedule lists or any of its Affiliates (or, upon consummation of the Mergers, of Parent or any of its Affiliates); (iii) that obligates the Company or any of its affiliates (or, upon consummation of the Mergers, Parent or any of its Affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires the Company or any of its Affiliates to make available investment opportunities to any Person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by the Company or any of its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each Contract case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any assets, rights or properties of the Company or any of its Subsidiaries; (vii) that limits the payment of dividends by the Company or any of its Subsidiaries; (viii) that relates to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any partnership or joint venture with any third party, except in each case that relates to merchant banking investments by the Company or its Subsidiaries in the ordinary course of business; (ix) that relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect; (x) that provides for payments to be made by the Company or any of its Subsidiaries upon a change in control thereof; (xi) that was not negotiated and entered into on an arm’s-length basis; (xii) that provides for indemnification by the Company or any of its Subsidiaries of any Person, except for contracts entered into in the ordinary course of business providing for customary and immaterial indemnification and provisions of the Company Articles and the Company Bylaws providing for indemnification; (xiii) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $90,000 per annum (other than any such contracts which are terminable by the Company Plan set forth or any of its Subsidiaries on 60 days or less notice without any required payment or other conditions, other than the condition of notice); (xiv) that grants to a Person any right, license, covenant not to ▇▇▇ or other right in Part 2.15(a) Company Owned Intellectual Property or grants to the Company or any of its Subsidiaries a license or other right to any Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software), in each case that involves the payment of more than $90,000 per annum or is material to the conduct of the Company Disclosure Schedule) that is in effect, and that has not expired or been terminated in accordance with its terms, as businesses of the date of this Agreement Company; (xv) to which the Company any Affiliate, officer, director, employee or consultant of such party or any of its Subsidiaries is a party or by which any of its properties or assets are otherwise bound of the following categories beneficiary (such Contracts required except with respect to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal propertyloans to, or for the provision deposit or receipt of servicesasset management accounts of, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligationsdirectors, other than any such Contracts officers and employees entered into in the Ordinary Course ordinary course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating business and in accordance with all applicable regulatory requirements with respect to Debt of the Company or providing for the creation of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liensit); (Cxvi) any Contract that would prevent, materially delay or materially impede the Company’s ability to consummate the First Merger, the Subsequent Merger, the Bank Merger or the other transactions contemplated hereby; (1xvii) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currencythat contains a put, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement call or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider right pursuant to which the Company is or reasonably any of its Subsidiaries could be obligated required to pay compensation purchase or sell, as applicable, any equity interests of any Person or assets; (excluding variable compensationxviii) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date lease of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiii) any lease, sublease, rental or occupancy agreement, license (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
property providing for annual rentals of $50,000 or more; (xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedulexix) that contains a change in control clause standstill or similar provision that would be reasonably be expected agreement pursuant to be triggered in connection with the consummation of the Contemplated Transactions and would result in payments by which the Company or any successor thereto in excess of $100,000, individually its Subsidiaries has agreed not to acquire assets or in securities of another party or any of its Affiliates; (xx) that is between the aggregate; and
(xvi) Company or any Contract not otherwise listed of its Subsidiaries and any director or required to be listed in Part 2.9(a) officer of the Company Disclosure Schedule or any Person beneficially owning five percent or more of the outstanding Company Common Stock; or (including xxi) that is otherwise not entered into in the ordinary course of business or that is material to the Company Intellectual Property Agreements) thator any Subsidiary of the Company or their financial condition or results of operations. The Company has Previously Disclosed or made available to Parent prior to the date hereof true, if terminated, or if such Contract expired without being renewed, would have a Company correct and complete copies of each Material Adverse EffectContract.
(bi) With respect to each Each Material Contract listed in Part 2.9(a) is a valid and legally binding agreement of the Company Disclosure Scheduleor one of its Subsidiaries, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company is not in violation of 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, any Material Contractas applicable, and, to the Knowledge of the Company, no other party the counterparty or counterparties thereto, is enforceable in accordance with its terms (subject to such Material Contract the Bankruptcy and Equity Exception) and is in violation full force and effect, (ii) the Company and each of any provision, or taken or failed its Subsidiaries has duly performed all obligations required to take any act which, with or without notice, lapse of time, or both, would constitute a default be performed by it prior to the date hereof under the provisions of any each Material Contract. Since January 1, 2021, (iii) neither the Company has not received nor any written notice orof its Subsidiaries, and, to the Knowledge of the Company, other communication regarding any actual counterparty or possible counterparties, is in breach of any provision of any Material Contract, and (iv) no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or breach of, default on the part of the Company or default under, any of its Subsidiaries under any such Material Contract by or provide any party thereto with the Companyright to terminate such Material Contract. The Section 3.16(b) of the Company has made available to Parent Disclosure Schedule sets forth a true and complete copies list of (x) all Material Contracts pursuant to which consents or waivers are or may be required and (y) all notices which are required to be given, in each such Material Contract in all material respects (including all modificationscase, amendments prior to the performance by the Company of this Agreement and supplements thereto the consummation of the First Merger, the Subsequent Merger, the Bank Merger and waivers thereunder, but not including purchase orders and similar confirmatory documents not specific to provisions that make such Contract a Material Contract)the other transactions contemplated hereby.
Appears in 1 contract
Material Contracts. (a) Part 2.9(a) Except as disclosed in Section 3.12 of the Company Disclosure Schedule lists each Contract (other than any Company Plan set forth in Part 2.15(a) Letter or except as hereafter entered into with the consent of the Company Disclosure Schedule) that is in effectBuyer, and that has which consent shall not expired or been terminated in accordance with its termsbe unreasonably withheld, as none of the date of this Agreement to which the Company Companies is a party to or by which any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.9(a) of the Company Disclosure Schedule, the “Material Contracts”):by:
(i) any Contract (or group of related Contracts), other than a Company Plan, that requires future payments by or to the Company in excess of $100,000 in any calendar year, including any such Contract (or group of such Contracts that are related) lease for the purchase, lease or sale of real property, raw materials, goods, commodities, utilities, equipment, supplies, products or other personal property, or for the provision or receipt of services, in each case to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice;
(ii) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights); (B) any Contract relating to the acquisition or disposition by the Company of any operating business or assets (other than pursuant to non-exclusive licenses or grants of non-exclusive rights) under which the Company has any executory covenants or indemnification or other obligations or rights (including put or call options); or (C) any Contract under which the Company have any indemnification obligations, other than any such Contracts entered into in the Ordinary Course of Business;
(iii) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company; (B) any Contract evidencing or relating to Debt of the Company or lease for personal property providing for the creation annual rentals of or granting any Lien upon any of the property or assets of the Company (excluding Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement (other than immaterial advances to employees and consultants in the Ordinary Course of Business) or (2) obligating or committing the Company to make any such loans or advances; and (D) any currency, commodity or other hedging or swap Contract;
(iv) any Contract creating or purporting to create any partnership, alliance or joint venture or any sharing of profits or losses by the Company with any Third Party; or (B) any Contract that provides for “earn-outs” or other contingent payments by or to the Company that have not yet been paid to the Company (excluding any contingent payments arising pursuant to recruiting agreements for Company Service Providers entered in into in the Ordinary Course of Business);
(v) any collective bargaining agreement or similar Contract with any trade union, works council or other labor organization;
(vi) any offer letter, employment agreement, independent contractor agreement or other Contract with any current Company Service Provider pursuant to which the Company is or reasonably could be obligated to pay compensation (excluding variable compensation) in excess of $100,000 annually;
(vii) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Body or that imposes any monetary or other material obligations upon the Company to any Governmental Body after the date of this Agreement;
(viii) all joint venture, partnership (involving sharing of profits) or similar Contracts (and not including any sharing of profits by a Third Party with the Company that are based on sales of goods or services other than Company Products);
(ix) any Contract under which any Governmental Body has any material rights;
(A) any Contract containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company, or, after the Closing, Parent or the Surviving Entity from engaging in any business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the agreements ancillary hereto; (B) any Contract in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract; (C) any Contract that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice; or (D) any Contract containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as those offered to another Person;
(xi) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of goods or services of the Company;
(xii) any Contract involving commitments to make capital expenditures or to Contract, purchase or sell assets involving $100,000 or more;
(xiiiiii) any leasesales, sublease, rental or occupancy agreement, license distribution (not relating to Intellectual Property), installment, and conditional sale agreement or agreement under which the Company is the lessee or lessor of, or owns, uses or operates any leasehold or other interest in any real or personal property;
(xiv) the Company Intellectual Property Agreements; and
(xv) any Contract (excluding any Contract disclosed in Part 2.14(f) of the Company Disclosure Schedule) that contains a change in control clause or similar provision that would be reasonably be expected to be triggered than in connection with the consummation Registered Fund), advisory, securities lending, syndicate, financial planning or other similar agreement providing for the provision by any of the Contemplated Transactions and would result Companies of Investment Management Services, advisory services, securities lending transactions, financial planning services, distribution services or brokerage or underwriting services, in each case, not entered into in the ordinary course of business;
(iv) any partnership, joint venture or other similar agreement or arrangement or any agreements related to the Purchased Investments, other than those agreements pursuant to which any of the Companies is an investment adviser;
(v) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) other than in relation to the stock lending business of the Companies or customer margin indebtedness in the ordinary course consistent with past practices, 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) requiring payments by any of the Company or any successor thereto Companies in excess of $100,0001 million, individually except any such agreement entered into subsequent to the date of this Agreement as permitted by Section 3.09(c);
(vii) any option, license (other than intellectual property licenses and inter-company licenses) or similar agreement providing for payments in excess of $1 million;
(viii) any agency, dealer, sales representative, marketing or other similar agreement not entered into in the ordinary course of business;
(ix) any agreement that limits the freedom of any of the Companies to compete in any line of business with any Person or in any area or which would so limit the aggregate; andfreedom of any of the Companies after the Closing Date;
(xvix) any Contract agreement that will constitute an obligation of the Companies following Closing and that is with (A) Seller or any of its Affiliates, (B) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of Seller or any of its Affiliates, (C) any Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, (other than any Person whose voting securities are held in client accounts), with power to vote by Seller or any of its Affiliates, other than Client Contracts or (D) any director, partner, trustee or officer of Seller or any of its Affiliates or any "associates" or members of the "immediate family" of any such director, partner, trustee or officer of Seller or any of its Affiliates (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the ▇▇▇▇ ▇▇▇) of any such director or officer;
(xi) any agreement with any director or officer of any of the Companies or with any "associate" or any member of the "immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any such director or officer; or
(xii) any other agreement, commitment, arrangement or plan not otherwise listed made in the ordinary course of business that is material to the Companies, taken as a whole.
(i) Each agreement, contract, plan, lease, arrangement or commitment disclosed in the Disclosure Letter to this Agreement or required to be listed disclosed pursuant to this Section not terminable by either party on notice of 90 days or less is a valid and binding agreement of such Company party to such agreement, contract, plan, lease arrangement or commitment and is in Part 2.9(a) full force and effect, except for any agreements, contracts, plans, leases, arrangements and commitments, the failure of the Company Disclosure Schedule (including Company Intellectual Property Agreements) that, if terminated, which to be valid and binding does not have or if such Contract expired without being renewed, would does not have a Company Material Adverse Effect.
(b) With respect to each Material Contract listed in Part 2.9(a) significant risk of the Company Disclosure Schedule, such Material Contract is, to the Knowledge of the Company, binding and enforceable against the Company and, to the Knowledge of the Company, against each party thereto other than the Company, in accordance with its terms, subject to (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies. Except for breaches, violations or defaults which have not had, and would reasonably be expected to havehaving, individually or in the aggregate, a Company Material Adverse EffectEffect on the Companies, taken as a whole, and (ii) none of the Company Companies, or, to the knowledge of Seller, any other party thereto is not in violation default or breach in any respect under the terms of any provision ofsuch agreement, contract, plan, lease, arrangement or taken commitment, and, no event or failed to take any act whichcircumstance has occurred that, with notice or without notice, lapse of time, time or both, would constitute a any event of default under the provisions ofthereunder, except for any Material Contract, and, to the Knowledge of the Company, no other party to such Material Contract is in violation of any provision, default or taken or failed to take any act breach which, with individually or without noticein the aggregate, lapse does not have or does not have a significant risk of timehaving a Material Adverse Effect on the Companies, or both, would constitute taken as a default under the provisions of any Material Contractwhole. Since January 1, 2021, the Company has not received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible violation or breach of, or default under, any Material Contract by the Company. The Company has made available to Parent true True and complete copies of each such Material Contract in all material respects (including all modificationsagreement, amendments and supplements thereto and waivers thereundercontract, but not including purchase orders and similar confirmatory documents not specific plan, lease, arrangement or commitment have been made available to provisions that make such Contract a Material Contract)Buyer.
Appears in 1 contract
Sources: Acquisition Agreement (SCB Inc)