Specified Contracts. (a) Except for this Agreement, any Benefit Plans and any leases, licenses, contracts, notes, mortgages, indentures or other agreements (excluding any Benefit Plans, each, a “Contract”) filed as exhibits to the Company Reports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to any Contract: (i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) containing covenants binding upon the Company or its Subsidiaries or Affiliates that restrict in any material respect the ability of the Company or any of its Subsidiaries or Affiliates (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its Affiliates) to compete or engage in any business, therapeutic or geographic area or with any Person or which grant “most favored nation” status; (iii) involving the payment or receipt by the Company or any of its Subsidiaries of amounts of more than $750,000 in the aggregate during the calendar year ended December 31, 2012, and which by its terms does not terminate or is not terminable without penalty by the Company or any of its Subsidiaries, as applicable, upon 90 days’ or less prior notice; (iv) that is between the Company or any of its Subsidiaries, on the one hand, and any of their respective directors or officers or any Person beneficially owning ten percent or more of the outstanding Shares, on the other hand; (v) that is a partnership agreement or joint venture agreement; (vi) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $500,000; (vii) pursuant to which (x) the Company or any of its Subsidiaries receives a material license under any Intellectual Property owned by a third party, or (y) the Company or any of its Subsidiaries grants a license to a third party under any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case, other than Contracts entered into in the ordinary course of business and Contracts with respect to Intellectual Property that is generally available on a commercial basis from third parties, including any Contracts providing for the license of software that is generally available on a commercial basis. (viii) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time; (ix) including or involving a loan to a director or officer; (x) providing for the payment or receipt by the Company or any of its Subsidiaries of milestone payments or royalties that the Company reasonably expects will exceed $500,000 in the twelve-month period immediately following the date of this Agreement, and which by its terms does not terminate or is not terminable without penalty by the Company or any of its Subsidiaries, as applicable, upon 90 days’ or less prior notice; (xi) that the Company reasonably expects will individually require aggregate expenditures by the Company and/or any of its Subsidiaries in the twelve month period immediately following the date of this Agreement of more than $750,000, and which by its terms does not terminate or is not terminable without penalty by the Company or any of its Subsidiaries, as applicable, upon 90 days’ or less prior notice; (b) Each such Contract described in clauses (i) through (xi) (but in any event excluding any Benefit Plans) is referred to herein as a “Specified Contract”. For purposes of this Agreement, the term “Affiliate”, when used with respect to any party, shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act and, with respect to any Specified Contract, also shall include any party captured by a broader definition in a Specified Contract. (c) Each of the Specified Contracts is valid and binding on the Company or its Subsidiaries, as the case may be, and to the Knowledge of the Company, each other party thereto, and is in full force and effect in accordance with its terms, except for such failures to be valid and binding or to be in full force and effect as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect and the Company and its Subsidiaries (A) are not in default under any of them, nor (B) to the Knowledge of the Company, is any other party to any such Specified Contract in default thereunder, nor (C) does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except in each case (A)-(C), for such defaults or conditions as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. True, unredacted and complete copies of all of the Specified Contracts have been made available to Parent (other than redactions of commercially sensitive information or contracts which by their terms the Company is not permitted to provide). (d) Neither the Company nor any of its Subsidiaries is a party to any agreement obligating the Company to file a registration statement under the Securities Act, which filing has not yet been made or which obligation has not yet lapsed. No registration rights granted by the Company shall survive the consummation of the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Optimer Pharmaceuticals Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Specified Contracts. (a) Except for this Agreement, any Benefit Plans and any leases, licenses, contracts, notes, mortgages, indentures or Schedule 3.8(a) contains a list of each Contract (other agreements (excluding any Benefit than Employee Plans, each, a “Contract”) filed as exhibits pursuant to which the Company Reports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to or has any Contractexecutory rights or obligations, that:
(i) that would be required involved, or is reasonably expected to be filed involve, annual payments by the Company as greater than $300,000 to any other Person (any such Person, a “material contract” pursuant to Item 601(b)(10Top Vendor”) of Regulation S-K under in the Securities Acttwelve (12)-month period ended December 31, 2024 or the twelve (12)-month period after the date hereof, respectively;
(ii) containing covenants binding upon involved, or is reasonably expected to involve, annual payments to the Company greater than $500,000 by any other Person in the twelve (12)-month period ended December 31, 2024 or its Subsidiaries or Affiliates that restrict the twelve (12)-month period after the date hereof, respectively;
(iii) (1) restricts in any material respect the ability of the Company or any of its Subsidiaries or Affiliates (or which, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its Affiliates) to compete or engage from engaging in any line of business, therapeutic or competing with any Person, in any geographic area or with any Person (2) imposes exclusivity requirements, non-solicitation obligations or which grant minimum payment or purchase obligations (including “take-or-pay” provisions or “requirements” or “output” contracts), “most favored nationnations” status;
(iii) involving the payment or receipt by “most favored customer” restrictions, or otherwise restricts the Company or any of its Subsidiaries of amounts of more than $750,000 Affiliates in any material respect in the aggregate during the calendar year ended December 31development, 2012distribution, and which by its terms does not terminate licensing, marketing, or is not terminable without penalty by the Company or sale of any of its Subsidiaries, as applicable, upon 90 days’ products or less prior noticeservices;
(iv) that is between relates to the acquisition or disposition of any business (whether by merger, sale of capital stock, sale of all or substantially all of the assets of a business or Person or otherwise) (1) entered into since January 1, 2022 or (2) pursuant to which the Company has remaining material Liabilities or any of its Subsidiaries, on the one hand, other material obligations (other than customary non-disclosure obligations or customary covenants to provide reasonable access to books and any of their respective directors or officers or any Person beneficially owning ten percent or more of the outstanding Shares, on the other handrecords);
(v1) that is a partnership agreement evidences outstanding Indebtedness or joint venture agreement(2) evidences the lending of money, an extension of credit, an obligation to advance or contribute capital, by the Company to any other Person;
(vi) that contains grants a putPerson a Lien on all or any material portion of the assets of the Company, call other than Permitted Liens;
(vii) involves a joint venture, partnership or similar right other arrangement pursuant to which the Company shares profits or losses with any other Person (excluding sales commissions payable in the ordinary course of business);
(viii) is with (x) any Highly Paid Employee (including employment agreements and agreements containing non-competition, non-solicitation or confidentiality covenants) and (y) any current or former Employee that provides for retention, severance, change in control, transaction or similar bonuses, payments or benefits;
(ix) is a collective bargaining agreement (or similar labor Contract);
(x) is a Lease, sublease, license, sublicense, easement or occupancy agreement for real property;
(xi) is with any of its Subsidiaries could be required to purchase the top ten (10) customers of the Company (by revenue of the Company in the twelve (12) month period ending December 31, 2024) (the “Top Customers”);
(xii) is with a Governmental Entity;
(xiii) involves interest rate, currency or sellcommodities swaps, as applicableoptions, any equity interests caps, collars, h▇▇▇▇▇ or forward exchanges, or other similar agreements, regardless of whether entered into for the purposes of hedging, investment or otherwise;
(xiv) provides for the indemnification of any Person or assets that have a fair market value or purchase price of more than $500,000;
(vii) pursuant to which (x) the Company or any of its Subsidiaries receives a material license under any Intellectual Property owned by a third party, or (y) the Company or any of its Subsidiaries grants a license to a third party under any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case, (other than Contracts indemnification under customer and supplier agreements and nondisclosure agreements and other similar agreements entered into in the ordinary course of business and Contracts business);
(xv) grants any Person an option or a right of first or last refusal or offer or similar preferential right to acquire assets or Equity Securities of the Company;
(xvi) is a (A) Company In-License or (B) Company Out-License;
(xvii) provides any Third Party with any rights upon a “change of control” or similar event with respect to Intellectual Property that is generally available on a commercial basis from third parties, including any Contracts providing for the license of software that is generally available on a commercial basis.
(viii) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective TimeCompany;
(ixxviii) including is an agency, dealer, sales representative, marketing or involving a loan other similar Contract that is material to a director or officerthe Company;
(xxix) providing for the payment is a Contract with a Related Party;
(xx) is a settlement, resolution or receipt by the Company or any of its Subsidiaries of milestone payments or royalties that the Company reasonably expects will exceed $500,000 in the twelve-month period immediately following similar Contract with continuing obligations after the date of this Agreement, ; or
(xxi) is material to the Company and which by its terms does not terminate or is not terminable without penalty by the Company or any of its Subsidiaries, as applicable, upon 90 days’ or less prior notice;
(xi) that the Company reasonably expects will individually require aggregate expenditures by the Company and/or any of its Subsidiaries in the twelve month period immediately following the date of this Agreement of more than $750,000, and which by its terms does not terminate or is not terminable without penalty by the Company or any of its Subsidiaries, as applicable, upon 90 days’ or less prior notice;otherwise described above.
(b) Each such Specified Contract described in clauses (i) through (xi) (but in any event excluding any Benefit Plans) is referred to herein as a “Specified Contract”. For purposes of this Agreementvalid, the term “Affiliate”, when used with respect to any party, shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act and, with respect to any Specified Contract, also shall include any party captured by a broader definition in a Specified Contract.
(c) Each binding and enforceable agreement of the Specified Contracts is valid and binding on the Company or its Subsidiaries, as the case may be, (and to the Knowledge of Company’s Knowledge, the Company, each other party parties thereto, ) (except as the enforceability may be limited by the Bankruptcy Exceptions) and is in full force and effect in accordance with its termseffect. Except as disclosed on Schedule 3.8(b), except for such failures to be valid and binding or to be in full force and effect as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect and neither the Company and its Subsidiaries (A) are not nor, to the Company’s Knowledge, any other party thereto is in default under or in breach of, or in receipt of any written notice of themany default under or breach of, nor (B) any Specified Contract, except as would not be material to the Knowledge of the Company. No event or circumstance has occurred that, is any other party to any such Specified Contract in default thereunder, nor (C) does any condition exist that with notice or lapse of time or both both, would constitute a material breach or material event of default by the Company or to the Company’s Knowledge, any other party thereto, thereunder, except in each case .
(A)-(C), for such defaults or conditions as are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. True, unredacted and complete copies of all of the Specified Contracts have been c) The Company has made available a true and correct copy of each written Specified Contract to Parent (other than redactions of commercially sensitive information or contracts which by their terms Buyer prior to the Company is not permitted to provide)date hereof.
(d) Neither In the twelve (12) months prior to the date of this Agreement, the Company nor has not received any written or, to the Company’s Knowledge, oral indication of (i) an intention to terminate (including a termination for convenience or for cause) any Specified Contract from the counterparty to such Specified Contract or (ii) in the case of any Contract with a Top Customer or Top Vendor (any such Contract, a “Significant Contract”), any determination by any counterparty to such Significant Contract to renegotiate in any material respect or not to exercise an existing contractual right to renew or extend on substantially similar terms such Significant Contract (including, for the avoidance of doubt, any purchase, sale or service order under any Specified Contract or any Significant Contract). With respect to any Specified Contract or any Significant Contract that, by its terms, would automatically renew or extend absent notice or other action by a party thereto, no such party has, to the Company’s Knowledge, given any such notice or taken any such action.
(e) Schedule 3.8(e) sets forth a true and complete list of the Top Customers and Top Vendors. Since the Balance Sheet Date, (i) no Top Customer or Top Vendor of the Company has ceased or materially altered the contractual terms of its Subsidiaries is a party to any agreement obligating relationship with the Company (including by materially altering the payment or other terms on which goods, services or technology are ordered, purchased, supplied or used), or, to file a registration statement under the Securities ActCompany’s Knowledge, which filing threatened to or provided notice of its intent to do so, and (ii) the Company has not yet been made received written or, to the Company’s Knowledge, oral, notice of any material dispute or which obligation has not yet lapsed. No registration rights granted by controversy or, to the Company shall survive Company’s Knowledge, threatened, material dispute or controversy, between the consummation Company, on one hand, and any Top Customer or Top Vendor of the MergerCompany, on the other hand.
Appears in 1 contract