Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”): (i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed; (ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole; (iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇); (iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries); (v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties; (vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing; (vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000); (viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000); (ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and (x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries). (b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (Vectren Utility Holdings Inc), Merger Agreement
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither Neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required relating to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
indebtedness for borrowed money or any financial guaranty; (ii) each any Contract to which the Company or any Company Subsidiary is a party that (a) restricts materially limits the ability of the Company or any Company Subsidiary to engage in or compete in any business line or in any manner that is geographic area; (iii) any Contract material to the Company and VAB Business or the Business that is terminable by the other party or parties upon a change in control of the Company Subsidiaries, taken as a whole, or any Company Subsidiary; (biv) requires any Contract that involves required future expenditures or guaranteed receipts by the Company or any Company Subsidiary of more than $1,000,000 in any one-year period; (v) any Contract with any Self-Regulatory Organization or any Contract for the clearing of securities transactions; (vi) any Contract for the lease of real property; (vii) any material Contract with respect to any Intellectual Property or System; (viii) any Employment Agreement; (ix) any Contract material to the VAB Business or the Business not made in the ordinary course of business; (x) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any Company Subsidiary; (xi) any joint venture or partnership agreement; (xii) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiariesown, taken as a wholeoperate, sell, transfer, pledge or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control otherwise dispose of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition amount of assets or business; (other than in the ordinary course of businessxiii) or capital stock or other securities (by mergerany material agency, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregatebroker, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreementsale representative, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal marketing or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
Contract; and (viixiv) any Contract that requires the Company with any director, officer or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none Affiliate of the Company or any Company Subsidiary (collectively, “Material Contracts”).
(b) True and correct copies of each Material Contract have been made available to Buyer and VAB Acquisition Sub.
(c) Each Material Contract is (with a valid and binding arrangement of the Company or without notice or lapse of timea Company Subsidiary and is in full force and effect, or both) in breach or default under any such Company Contract and, to the Knowledge and none of the Company, no the Company Subsidiaries or, to the Company’s Knowledge, any other party to thereto is in default or breach in any material respect under the terms of any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Nasdaq Stock Market Inc), Merger Agreement (Instinet Group Inc)
Contracts. (a) Except for For purposes of this Agreement, the Contracts filed as exhibits to any term "Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by Material Contract" means any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of which the Company Disclosure Letter, or any of its Subsidiaries is a “Company Contract”):
party or otherwise bound: (i) any Contract required pursuant to be filed by which the Company as and its Subsidiaries reasonably expect to spend or may receive, in the aggregate, more than $1,000,000 during the fiscal year ended December 31, 2006, (ii) any Contract containing any covenant (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material Intellectual Property or to compete with any Person in any line of business, (B) granting to any customer or partner of the Company exclusive rights to use services, software or application of the Company, or (C) otherwise having a “material adverse effect on the right of the Company or its Subsidiaries to sell or distribute any products or services or to purchase or otherwise obtain any software, (iii) any "material contract” pursuant to " (as such term is defined in Item 601(b)(10) of Regulation S-K under K) with respect to the Securities Act Company and its Subsidiaries, (iv) any employment, consulting or indemnification Contract (other than a standard stock option, assignment of inventions or confidentiality agreement) with any executive officer or other employee of the Company, a Subsidiary of the Company or any member of the Company Board earning an annual salary in excess of $150,000, other than those that has are terminable by the Company or any of its Subsidiaries on no more than 30 days' notice without material liability or financial obligation to the Company or any of its Subsidiaries, (v) any Contract relating to indebtedness or other commitment relating to the incurrence of indebtedness of the Company or an of its Subsidiaries, with respect to an amount in excess of $250,000, (vi) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries, after the date of this Agreement, of a material amount of assets not been so filed;
(ii) each Contract in the Ordinary Course of Business or pursuant to which the Company or any of its Subsidiaries has any material ownership interests in any other Person other than the Company's Subsidiaries, (vii) any Contract relating to capital expenditures by the Company or any Subsidiary is and involving future payments which, together with future payments under all other Contracts or commitments relating to the same capital project, exceed $1,000,000, (viii) any Contract providing for the administration by any Person of any part of the leases, loans, installment financing contracts, installment sales contracts, conditional sales agreements or financial instruments of a party that (a) restricts the ability similar type of the Company or any of its Subsidiaries, (ix) any Contract limiting the right of the Company or any Subsidiary to engage pay dividends or distributions to its shareholders, (x) any Contract in which the Company or compete in any business in Subsidiary participates as a general partner or joint venture, (xi) any manner Contract between or among the Company, on the one hand, and any of its Affiliates (other than the Company or a Subsidiary), on the other hand, (xii) any Contract providing for indemnification or any guaranty that is material to the Company and the Company its Subsidiaries, taken as a wholewhole (in each case, under which the Company has continuing obligations as of the date hereof), other than any guaranty by the Company of any of its Subsidiaries' obligations or any Contract providing for indemnification entered into in connection with the distribution, sale or license of services or hardware or software products in the Ordinary Course of Business, or otherwise in accordance with the Company's standard forms of software license agreement as provided or made available to Buyer, (bxiii) requires the Company or any Company Subsidiary Contract to conduct any business on a “most favored nations” basis with provide source code to any third party for any products that restricts are material to the Company, including any Contract to put such source code in escrow with a third party on behalf of a licensee or contracting party, other than any material respect customer Contracts entered into in the business Ordinary Course of Business consistent with past practice and substantially on the Company's standard terms and conditions providing for placement of such source code into escrow solely for the purpose of permitting the customer or its agents to use such source code in support of internal use of the Company Company's products, and the Company Subsidiaries, taken as a whole, or (cxiv) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each settlement Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation releases immaterial in nature or storage amount entered into with former employees or independent contractors of gas, transportation the Company in the Ordinary Course of coal, transmission of electric energy, capacity Business or ancillary services sales, (B) settlement Contracts for future purchases, exchange or sales only involving the payment of gas, coal, oil or electric energy cash (which has been paid) in amounts that do not exceed $500,000 in any individual case. All Company Material Contracts are described in Section 2.11(a)(i) and (Cii) financial derivative interest rate ▇▇▇▇▇▇are listed in Section 2.11(a)(i) and (ii);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money respectively, of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Disclosure Schedule.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Combination Agreement (WiderThan Co., Ltd.), Combination Agreement (Realnetworks Inc)
Contracts. (a) Except for this Agreement and the Contracts filed as exhibits to any disclosed in the Filed Company ReportSEC Documents, or set forth in Section 3.15 3.13(a) of the Company Disclosure LetterLetter sets forth a true and complete list, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary is a party tohas made available to Parent true and complete copies, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (aA) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person in any manner that is material to the Company and the Company Subsidiaries, taken as a wholegeographical area, (bB) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (cC) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party;
(iii) each Contract under which the Company or any Company Subsidiary (A) licenses Intellectual Property from or to any third party that restricts in (other than generally commercially available, off-the-shelf software programs), and (B) develops any material respect the business of Intellectual Property, itself or through a third party, except, in each case, for such license or development Contracts that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iiiiv) each Contract to which the Company or any Company Subsidiary is a party with any academic institution, research center or Governmental Entity to which the Company or any Company Subsidiary is a party that provides for the provision of funding to the Company or any Company Subsidiary for research and development activities involving the creation of any material Intellectual Property;
(v) each Contract to which the Company or any Company Subsidiary is a party that provides for annual payments to or from the Company or any its Subsidiaries receipts in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties400,000;
(vi) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty, in each case with respect to a principal amount in excess of $100,000;
(vii) each Contract to which the Company or any Company Subsidiary is a party that (A) relates to provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or capital stock or other securities businesses (whether by merger, capital contribution sale of stock, sale of assets or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars that ($25,000,000A) in the aggregate, has not yet been consummated or (B) relates to has outstanding any material purchase price adjustment, “earn-out”, indemnification, payment or similar obligations on the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets part of the Company or the any Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars Subsidiary;
($25,000,000viii) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant each Contract to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of is a business or assets by the Company or any Company Subsidiary party pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, royalty payments, achievement of results payments, milestone payments, “earnoutearn-out” or other contingent, deferred or fixed contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business consistent with past practice), in each case that would reasonably be expected to could result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)150,000;
(ix) each Contract with to which the Company or any Company Subsidiary is a term exceeding one (1) year after party that obligates the date of this Agreement for future purchasesCompany or any Company Subsidiary to make any capital commitment, exchange loan or sales of gasexpenditure, oil or electric energy in an amount in excess of Fifty Million Dollars $250,000;
(x) other than Company Warrants or Company Stock Options, each Contract that requires or permits the Company or any Company Subsidiary, or any successor or acquirer thereto, to make any payment to another person as a result of a change of control of the Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment, in each case, in an amount in excess of $50,000,000250,000;
(xi) each Contract with any Governmental Entity, in the aggregate after the date each case that could result in payments in excess of this Agreement $100,000 (other than Contracts solely between for or in respect of any Tax);
(xii) each Contract to which the Company and or any of its wholly-owned Subsidiaries or solely among its Company Subsidiary is a party, other than with respect to any partnership that is wholly owned Subsidiaries)by the Company or any wholly owned Company Subsidiary, that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person; and
(xxiii) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between or binding upon the Company and or any of its wholly-owned the Company Subsidiaries or solely among its wholly owned Subsidiaries)any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in clauses (i) through (xiii) above is referred to herein as a “Specified Contract”.
(b) Except as would not have or would not reasonably be expected to haveAs of the date of this Agreement, individually or in each of the aggregate, a Company Material Adverse Effect, (i) each Company Contract Specified Contracts is a valid, binding and legally enforceable obligation of (except as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company or one of the a Company SubsidiariesSubsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect with respect to as would not reasonably be expected to, individually or in the aggregate, have a Company and the Company Subsidiaries, as the case may be, and to the Knowledge Material Adverse Effect. As of the Companydate of this Agreement, the other parties thereto and (iii) none of there is no default under any Specified Contract by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no any other party to any such Company Contract is (thereto, and no event has occurred that with the lapse of time or without the giving of notice or lapse both would constitute a default thereunder by the Company or any Company Subsidiary or, to the knowledge of timethe Company, any other party thereto, in each case except as would not reasonably be expected to, individually or both) in breach or default thereunder. The the aggregate, have a Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Celator Pharmaceuticals Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Neither Company nor any Company Subsidiary of its subsidiaries is a party to, and none of their respective properties subject to or assets is otherwise bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):by:
(ia) any Contract required to be filed or series of related Contracts which requires aggregate future expenditures by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability such subsidiary in excess of the $150,000 or which might result in payments to Company or any Company Subsidiary to engage such subsidiary in excess of $150,000 or compete in any business in any manner that is otherwise material to the business of Company and the Company Subsidiariesits subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness the purchase or Indebtedness solely between the Company and any sale of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than inventory entered into in the ordinary course of business, consistent with past practices;
(b) any Contract for the purchase or capital stock sale of any commodity, product, material, supplies, equipment or other securities (by mergerpersonal property, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than purchase or sale orders, or Contracts for the purchase or sale of inventory, in each case entered into in the ordinary course of business, consistent with past practices, and any Contract for fulfillment, call center, freight, or e-mail services;
(c) after any distributor, reseller manufacturer’s representative, sales representative or similar Contract under which Company or such subsidiary does not have the date right to terminate without penalty on less than thirty (30) days’ notice;
(d) any Contract pursuant to which any Company Intellectual Property is licensed to or from Company or any of this Agreementits subsidiaries without being set forth in a written agreement, directly other than Contracts licensing the right to use off-the-shelf or indirectlyother readily commercially available third party software, such as by click-wrap or shrink-wrap license, and other than Contracts between or among any of assets Company and its subsidiaries;
(e) any Contract with any current or former securityholder, employee, officer or director of Company or such subsidiary, or any “affiliate” or “associate” of such Persons (as such terms are defined in the rules and regulations promulgated under the Securities Act), or (with respect to such Persons that are natural persons) any member of his or her immediate family, but excluding any Excluded Related Party (any of the Company foregoing, a “Related Party”), including, without limitation, any Contract providing for the furnishing of services by, rental of real or the Company Subsidiaries personal property from, or otherwise requiring payments to, or from, any Related Party, other than (i) any Contract with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) any such employee in his or her capacity as such entered into in the aggregate ordinary course of business consistent with past practice or any capital stock or other securities (by merger, capital contribution or otherwiseii) as set forth on Section 3.17(e) of the Company or Disclosure Schedule (the Contracts listed on Section 3.17(e) of the Company Subsidiaries or (C) contains a putDisclosure Schedule being collectively referred to as the “Related Party Agreements”); the term “Excluded Related Party” shall mean any former securityholder, call, right of first refusal or similar right pursuant to which the Company or any former director who was an “affiliate” or “associate” (as such terms are used above) of any such former securityholder, of any of Company Subsidiary could and its subsidiaries, that has not been a securityholder, officer or director of any of Company and its subsidiaries at any time after December 12, 2007 (the “SB Merger Closing Date”), and each Person that otherwise would be required a Related Party solely by virtue of such Person’s relationship to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)foregoing Persons.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (Gsi Commerce Inc), Merger Agreement (Gsi Commerce Inc)
Contracts. (a) Except for As of the Contracts filed as exhibits to any Company Reportdate of this Agreement, or set forth in Section 3.15 none of the Company Disclosure Letter, as of the date hereof, neither the Company nor or any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Except for Filed Company SEC Documents (including, solely for this purpose, any exhibits or schedules incorporated by reference therein) (other than in the case of Section 4.14(b)(i) below), Section 4.14(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent prior to the date of this Agreement true and complete copies, of:
(i) each Contract to which the Company or any of the Company Subsidiaries is a party that restricts in any material respect the ability of the Company or any Company Subsidiaries to compete in any line of business, product, service or geographic area;
(ii) each Contract (A) pursuant to which any material amount of Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries (B) that grants a Lien, other than a Permitted Lien, on any material property or assets of the Company or any Company Subsidiary, (C) that restricts the granting of Liens on any material property or asset of the Company or any Company Subsidiary or the incurrence or guaranteeing of any Indebtedness, (D) that provides for or relates to any interest, currency or hedging, derivatives or similar arrangements or (E) that restricts payment of dividends or any distributions in respect of the equity interests of the Company or any Company Subsidiary;
(iii) each partnership, limited liability company, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the ordinary course of business;
(iv) each Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, any (A) executive, officer or director of either the Company or any of the Company Subsidiaries or any person that has served as such an executive, officer or director within the last five (5) years or any of such officer’s or director’s immediate family members, (B) record or beneficial owner of more than 5% of the Company Shares outstanding as of the date of this Agreement or (C) to the Knowledge of the Company, any affiliate of any such officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits to any Filed Company SEC Documents;
(v) each Contract (or group of related Contracts) relating to the disposition or acquisition by the Company or any of the Company Subsidiaries, with obligations remaining to be performed or liabilities continuing after the date of this Agreement or that was entered into on or after January 1, 2012, of any business or any assets for consideration of at least $2 million;
(vi) any Contract (or group of related Contracts) (A) for the use or licensing of material Intellectual Property Rights granted by the Company or any Company Subsidiary to any Person and/or (B) for the use of licensing of material Intellectual Property Rights granted by any Person to the Company or any Company Subsidiary;
(vii) each material hedge, collar, option, forward purchasing, swap, derivative, or similar Contract, in each case, other than any such Contract entered into in the ordinary course of business;
(viii) each Contract (or group of related Contracts) containing any “standstill” provisions or provisions of similar effect to which the Company or any of the Company Subsidiaries is a party or of which the Company or any of the Company Subsidiaries is a beneficiary;
(ix) each contract relating to a Company Affiliate Transaction; and
(x) each Contract (or group of related Contracts) to which the Company or any Company Subsidiary is a party that (ainvolved aggregate payments during calendar year 2014 or could reasonably be expected to involve aggregate payments during any subsequent twelve-month period of at least $1 million; provided that the following Contracts shall not be required to be listed on Section 4.14(b) restricts the ability of the Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 4.14(b), and shall not be deemed a “Material Contract” for any purposes hereunder (whether or not a Filed Company Contract): (1) any Company Subsidiary to engage in Benefit Plan and (2) any Contract between the Company, on the one hand, and one or compete in any business in any manner that is material to the Company and the more wholly owned Company Subsidiaries, taken as a whole, (b) requires on the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeother hand, or between one or more Company Subsidiaries (cany such Contract in clauses (1) provides and (2), an “Excluded Contract”). Each Contract described in this Section 4.14(b) and each Filed Company Contract, in each case, other than any Excluded Contract (but including, for “exclusivity,” rights of first refusal or offer or all purposes, any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate entered into after the date of this Agreement (other than (Athat would have been required to have been listed in this Section 4.14(b) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal as a Material Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material if such Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after existed on the date of this Agreement), directly or indirectly, of assets of the Company or the Company Subsidiaries with is referred to herein as a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;“Material Contract.”
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(bc) Except as would not have or would not reasonably be expected to havefor matters which, individually or in the aggregate, have not had a Company Material Adverse Effect, (i) each Company Material Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject except, in all respects to the Bankruptcy each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and Equity Exceptionsby general principles of equity, (ii) each such Company Material Contract is in full force and effect with respect to the Company and the Company Subsidiarieseffect, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any of the Company Subsidiary Subsidiaries is (with or without notice or lapse of time, or both) in breach breach, subject to a target amortization event, subject to a facility early amortization event or in default (or has received any notice alleging any such breach, event or default) under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and no event of default, facility early amortization event or target amortization event (if applicable) has occurred and is continuing thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (New Residential Investment Corp.), Merger Agreement (Home Loan Servicing Solutions, Ltd.)
Contracts. (a) Except for As of the Contracts filed as exhibits to any Company ReportAgreement Date, or set forth in Section 3.15 none of the Company Disclosure Letter, as of the date hereof, neither the Company nor or any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.17(b) of the Company Disclosure Letter sets forth, as of the Agreement Date, an accurate and complete list of the following Contracts of the Company or any Company Subsidiary, and (other than any Filed Company Contract that has been filed with the SEC in unredacted form prior to the Agreement Date) the Company has Made Available accurate and complete copies of each such Contract:
(i) each Contract (A) that resulted in aggregate payments by the Company or the Company Subsidiaries in excess of $3,000,000 in the Company’s fiscal year ended March 31, 2020 or (B) under which the Company or any of its Subsidiaries is contractually obligated to make payments in excess of $10,000,000 in the aggregate after the Agreement Date;
(ii) any In-bound License, Third Party IP Contract or Out-bound License;
(iii) all material research and development Contracts, Clinical Trial agreements, clinical research agreements, manufacture or supply agreements, distribution agreements, or similar Contracts, in each Contract case relating to a Product Candidate;
(iv) all leases, subleases, sub-subleases and licenses to which the Company or any Company Subsidiary is a party that with respect to real property (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company SubsidiariesReal Estate Leases”);
(v) each material Contract with respect to the creation, formation, governance or control all leases of any material partnerships, joint ventures or joint ownership arrangements with third partiespersonal property involving annual payments in excess of $500,000;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” obligations or interests involving (1) the achievement of regulatory or commercial milestones or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate similar contingent payments in excess of Twenty$3,000,000 or (2) payment of royalties or other amounts calculated based upon any revenues or income of the Company or a Company Subsidiary that cannot be terminated by the Company or a Company Subsidiary without penalty or further payment without more than 90 days’ notice;
(vii) any Contract relating to the disposition of any business or material assets other than the sale of products or services in the ordinary course of business (whether by merger, sale of stock, sale of assets or otherwise) by the Company or any of the Company Subsidiaries;
(viii) any Contract relating to the acquisition of any business or assets (whether by merger, sale of stock, sale of assets or otherwise), other than purchases of supplies, inventory and equipment in the ordinary course of business consistent with past practice, that (A) the Company or any of its Subsidiaries has entered into since January 1, 2018 or (B) contains any outstanding non-Five Million Dollars ($25,000,000)competition, earn-out or other contingent payment obligations or any other outstanding material obligation of the Company or any of the Company Subsidiaries;
(ix) each any Contract with for a term exceeding one (1) year after the date of this Agreement for future purchasesjoint venture, exchange partnership, strategic alliance or sales of gas, oil similar agreement or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andarrangement;
(x) each Contract pursuant to which any amount of Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(xi) any Contract granting a Lien (other than a Permitted Lien) over the property or assets of the Company or any of the Company Subsidiaries;
(xii) other than with Parent or any of its Affiliates, any stockholders’, investors rights’, registration rights or similar Contract that provides for voting obligations, registration rights, sale restrictions or transfer restrictions with respect to of any equity securities or voting interests in the Company or a Company Subsidiary, providing any Person with any preemptive right, right of participation, information right or similar right with respect to any equity securities or voting interests in the Company or a Company Subsidiary, or providing the Company or a Company Subsidiary with any right of first refusal with respect to, or right to repurchase or redeem, any equity securities or voting interests in the Company or a Company Subsidiary, other than, with respect to any right to repurchase or redeem equity securities in the Company, in connection with any Company Share Award issued under the Company Share Plan;
(xiii) any Contract (A) containing any provision or covenant that materially limits the freedom of the Company or any of the Company Subsidiaries to (x) sell any products or services of or to any other Person or in any geographic region, (y) engage in any line of business, or (z) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries other than Contracts containing customary provisions restricting solicitation of employees and agreements with recruiting agencies pursuant to which such agencies are granted the exclusive right to identify candidates for employment, (B) requiring the Company or a Company Subsidiary to deal exclusively with, or to purchase its total requirements of any product or service from, a third party or that contain “take or pay” provisions or that provide rights of first refusal, first offer or similar preferential rights to any supplier, distributor or contractor, or (C) containing a “most-favored-nation,” or best pricing or other similar term exceeding or provision; and
(xiv) each material Contract between the Company or any of the Company Subsidiaries, on the one hand, and, on the other hand, any (1A) year after present executive officer or director of either the date Company or any of this the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the Common Shares outstanding as of the Agreement which is a financial derivative interest rate hedge with a value Date (other than Parent, Sumitomo or any of their respective Affiliates) or (C) to the Knowledge of the Company, any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in excess Rules 12b-2 and 16a-1 of Ten Million Dollars ($10,000,000the Exchange Act) of any such officer, director, or beneficial owner) (other than Parent, Sumitomo or any of their respective Affiliates); provided that the following Contracts solely will not be required to be listed on Section 3.17(b) of the Company Disclosure Letter, will not be required to made available to Parent pursuant to this Section 3.17(b), and will not be deemed a “Material Contract” for any purposes hereunder (whether or not a Filed Company Contract): (1) any Company Benefit Plan, or (2) any Contract between the Company Company, on the one hand, and any of its wholly-owned Subsidiaries one or solely among its more wholly owned Company Subsidiaries, on the other hand, or between one or more wholly owned Company Subsidiaries (any such Contract in clauses (1) or (2), an “Excluded Contract”). Each Contract described in this Section 3.17(b) and each Filed Company Contract, in each case, other than any Excluded Contract, is referred to herein as a “Material Contract.”
(bc) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, Contract is (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject except, in all respects to the Bankruptcy each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and Equity Exceptionsby general principles of equity, and (ii) each such Company Contract is in full force and effect in all material respects, except, in the case of clauses (i) or (ii), with respect to the Company and the Company Subsidiaries, any Material Contract which expires by its terms (as the case may be, and to the Knowledge in effect as of the Company, Agreement Date) or which is terminated in accordance with the other parties terms thereof by any party thereto and (iii) none in the ordinary course of business consistent with past practice. None of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in material breach or material default under any such Company Material Contract andand no event has occurred that gives any third party to a Material Contract the right to accelerate the maturity or performance of any Material Contract or the right to cancel, to terminate or materially modify any Material Contract. To the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in material breach or material default thereunder. The thereunder (and neither the Company nor any Company Subsidiary has made available waived or failed to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all enforce any material amendments, modifications, extensions, rights or renewals with respect theretomaterial benefits under any Material Contract).
Appears in 2 contracts
Sources: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 2.10(a) of the Company Disclosure LetterSchedule identifies, as of the date hereofof this Agreement, neither each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Target Company nor any Company Subsidiary is a party tohas remaining material rights or obligations. For purposes of this Agreement, and none of their respective properties or assets is bound by any each of the following categories of Company Contracts (each such Contract required shall be deemed to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, constitute a “Company Material Contract”)::
(i) any Contract in effect and which has been filed (or is required to be filed filed) by the Company as a “material contract” an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act Exchange Act, or that has not been so filedwould be required to be disclosed under Item 404 of Regulation S-K under the Exchange Act;
(ii) any Contract with any labor union or any collective bargaining agreement or similar Contract for the benefit of any Company Associate(s);
(iii) each Contract pursuant to which any Intellectual Property Rights or material Intellectual Property that has been incorporated into any Target Company’s products or services and is licensed to any Target Company (other than non-exclusive licenses to unmodified commercially available third party software) (“In-Bound IP License”);
(iv) each Contract pursuant to which any Company IP or Intellectual Property Rights incorporated into any Target Company’s products or services is licensed by any Target Company to any third party (other than non-exclusive licenses granted in the ordinary course of business and ordinary course licenses to third-parties to use a Target Company’s trademarks in connection with marketing materials) (“Out-Bound IP License”);
(v) any Contract (other than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Target Company of products or services, which supplier could not otherwise be replaced with a substantially equivalent supplier without material impact on the Target Companies;
(vi) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate, other than (in each case) (1) indemnification agreements with current and former directors and officers entered into in the ordinary course of business and (2) employment, confidentiality and consulting agreements with current and former Company Associates entered into in the ordinary course of business;
(vii) any Contracts (A) that restrict the ability of the Target Companies to compete in any business or with any Person in any geographical area; (B) in which the Company or any Target Company Subsidiary is a party that has granted “most favored nation” pricing provisions; (aC) restricts the ability of in which the Company or any Target Company Subsidiary has agreed to engage purchase a minimum quantity of goods or services, except to the extent such Contracts do not contain minimum purchase commitments in excess of $100,000 individually or compete $500,000 in the aggregate; or (D) which provides for “exclusivity” or any business similar requirement in favor of any manner that is third party, in each case which restriction would or would reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company SubsidiariesTarget Companies, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)them individually;
(viii) any Contract incorporating or providing for any material guaranty of any third party’s obligations, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property Rights) or similar obligation, other than Contracts entered into since January 1, 2016 that relates to in the sale, transfer or other disposition ordinary course of a business or assets by and except for any standard terms and conditions of the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)Target Companies;
(ix) each any Contract providing for any currency hedging;
(x) any Contract requiring that any of the Target Companies give any written notice or provide any information to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction, excluding for the avoidance of doubt any Contracts with provisions requiring the consent of, or notice to, the counterparty in connection with an assignment of such Contract by, or change of control of, a Target Company;
(xi) any Contract providing for the lease or sublease of a material portion of any Target Leased Real Property;
(xii) any Contract that is a Government Contract;
(xiii) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount in excess of One Hundred and Fifty Thousand Dollars ($150,000) by the Target Companies in the fiscal year ended December 31, 2021; or (B) requires by its terms the payment or delivery of cash in excess of One Hundred and Fifty Thousand Dollars ($150,000) in the fiscal year ending December 31, 2022;
(xiv) any Contract that has a term exceeding of more than one year and which may not be terminated by a Target Company (1without penalty in excess of Fifty Thousand Dollars ($50,000)) year within 120 days after the delivery of a termination notice by such Target Company (other than confidentiality or nondisclosure agreements entered into by any Target Company);
(xv) any Contract relating to Debt; and
(xvi) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each Company Contract that constitutes a Company Material Contract as of the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Agreement.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, Each Company Contract that constitutes a Company Material Adverse Effect, (i) each Company Contract is a valid, binding valid and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with respect its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule: (i) none of the Target Companies is in violation or breach of, or default under, any Company Material Contract, which violation, breach or default is material to the Company and the Company SubsidiariesTarget Companies, taken as the case may be, and a whole; (ii) to the Knowledge knowledge of the Company, the no other parties thereto and Person is, in any material respect, in violation or breach of, or default under, any Company Material Contract; (iii) none to the knowledge of the Company Company, no event has occurred, and no circumstance or any Company Subsidiary is condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach of any Company Material Contract, which violation or bothbreach would be material to the Target Companies, taken as a whole; (B) give any Person the right to declare a default in breach or default any material respect under any such Company Contract andMaterial Contract; (C) give any Person the right to accelerate in any material respect the maturity or performance of any Company Material Contract; or (D) give any Person the right to cancel, terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2020 and the date of this Agreement, none of the Target Companies has received any written notice (or, to the Knowledge knowledge of the Company, no any other party to communication) regarding any such Company Contract is (with actual or without notice possible material violation or lapse of timebreach of, or both) in breach or material default thereunder. The under, any Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 2 contracts
Sources: Employment Agreement (AutoWeb, Inc.), Merger Agreement (AutoWeb, Inc.)
Contracts. (a) Except for the Contracts as filed as exhibits an exhibit to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of a CBOT Holdings SEC Document prior to the date hereofof this Agreement, and except for CBOT Holdings Benefit Plans, neither the Company CBOT Holdings nor any Company CBOT Holdings Subsidiary is a party toto or bound by, and none nor are any of their respective properties assets, businesses or assets is operations party to, or bound by or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness (other than agreements among direct or indirect wholly owned CBOT Holdings Subsidiaries) in excess of $250,000;
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership or joint venture material to CBOT Holdings or any of the following categories CBOT Holdings Subsidiaries;
(iii) any agreement or series of Contracts related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) any material agreement, other than an agreement with respect to compensation or similar arrangements not involving a director of CBOT Holdings or one of the officers of CBOT Holdings for purposes of Section 16 of the Exchange Act and any agreement entered into in a commercially reasonable manner consistent with industry practice, with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of CBOT Holdings or any CBOT Holdings Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by CBOT Holdings or any CBOT Holdings Subsidiary or (C) any current or former director or officer of CBOT Holdings or any CBOT Holdings Subsidiary;
(v) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which CBOT Holdings or any CBOT Holdings Subsidiary (or, after the Effective Time, the Surviving Entity or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business including any covenant not to compete or could require the disposition of any material assets or line of business of CBOT Holdings or any CBOT Holdings Subsidiary;
(vi) any agreement under which (A) any Person (other than CBOT Holdings or a CBOT Holdings Subsidiary) has directly or indirectly guaranteed any liabilities or obligations of CBOT Holdings or any CBOT Holdings Subsidiary or (B) CBOT Holdings or any CBOT Holdings Subsidiary has directly or indirectly guaranteed liabilities or obligations of any other Person (other than CBOT Holdings or a CBOT Holdings Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such Contract guarantor obligation is less than $250,000;
(vii) any other agreement or amendment that is required to be filed as an exhibit to any Company Report a future report, schedule, form or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract statement required to be filed by with or furnished to the Company SEC (as a “material contract” pursuant to Item described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act Act) that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken filed as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments an exhibit to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) incorporated by reference in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect CBOT Holdings SEC Documents filed prior to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract agreement that involves expenditures or receipts of CBOT Holdings or any CBOT Holdings Subsidiary in excess of $250,000 per year not entered into since January 1, 2016 that relates in the ordinary course of business consistent with past practice;
(ix) any material agreement granting or obtaining any right to the sale, transfer use or other disposition of a business or assets by the Company or practice any Company Subsidiary pursuant rights under any Intellectual Property to which CBOT Holdings is a party or otherwise bound (collectively, the Company or “CBOT Holdings License Agreements”); or
(x) any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that agreement the termination of which would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Material Adverse Effect on CBOT Holdings.
(b) Except The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 3.19(a) of the CBOT Holdings Disclosure Letter are referred to herein as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company “CBOT Holdings Contracts.” Each CBOT Holdings Contract is a valid, valid and binding and legally enforceable obligation agreement of the Company CBOT Holdings or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiariesa CBOT Holdings Subsidiary, as the case may be, and is in full force and effect, and none of CBOT Holdings, any CBOT Holdings Subsidiary or, to the Knowledge knowledge of CBOT Holdings, any other party thereto is in default or breach in any material respect under the Companyterms of any such CBOT Holdings Contract; and no event has occurred, which, after the other parties thereto and (iii) none giving of the Company or any Company Subsidiary is (notice, with or without notice or lapse of time, or both) in breach otherwise, would constitute a material default by CBOT Holdings or default any CBOT Holdings Subsidiary or, to the knowledge of CBOT Holdings, any other party under such CBOT Holdings Contract. Since January 1, 2006, neither CBOT Holdings nor any CBOT Holdings Subsidiary has released or waived any material right under any such Company Contract andCBOT Holdings Contract. True, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true correct and complete copies of (i) each Company such CBOT Holdings Contract (includingincluding all modifications and amendments thereto and waivers thereunder) and (ii) all form contracts, for agreements or instruments used in and material to the avoidance business of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)CBOT Holdings and the CBOT Holdings Subsidiaries have been made available to CME Holdings.
Appears in 2 contracts
Sources: Merger Agreement (Chicago Mercantile Exchange Holdings Inc), Merger Agreement (Cbot Holdings Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 2.11 of the Company Disclosure Letter, Letter contains a list as of the date hereof, neither of this Agreement of each of the following Contracts to which the Company nor any or a Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 2.11 of the Company Disclosure LetterLetter (whether or not so listed), but excluding any Company Plan, being referred to as a “Company Material Contract”):
(ia) any Each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedor disclosed by the Company on a Current Report on Form 8-K, in each case, since January 1, 2020;
(iib) each Contract to which the Company or any Company Subsidiary is a party that (ai) restricts in any material respect the ability of the Company or Company, any Company Subsidiary or any Affiliate of any of them to engage in or compete in any business in geographic area or line of business, solicit any manner client or customer or contains any similar restriction or (ii) contains a “most favored nation” provision or that is material to the Company and the Company Subsidiaries, taken as a whole, (b) otherwise requires the Company or any Company Subsidiary to conduct business with any business Person on a “most favored nations” basis preferential or exclusive basis, or that includes a price protection or rebate provision in favor of the counterparty to such Contract or any similar provision (in the case of each of (i) or (ii), including any such Contracts that would so restrict Parent, any Parent Subsidiary or any Affiliate following the Closing);
(c) each material joint venture agreement or similar agreement with a third party;
(d) each Contract between the Company or any third party that restricts in Company Subsidiary, on the one hand, and any material respect the business director, officer or Affiliate (other than a wholly owned Company Subsidiary) of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement Company Subsidiary or right any of their respective “associates” or “immediate family” members (as such terms are defined in favor of any third party that restricts in any material respect the business Rule 12b-2 and Rule 16a-1 of the Company and Exchange Act), on the Company Subsidiariesother hand, taken as a whole;
including (iiibut not limited to) each any Contract pursuant to which the Company or any Company Subsidiary is a party has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Contract that provides for payments directly relates to employment arrangements;
(e) each material acquisition or from divestiture Contract or material licensing agreement that contains material indemnities or any “earnout” or other contingent payment obligations that are outstanding obligations of the Company or any its Subsidiaries in excess Company Subsidiary as of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)Agreement;
(ivf) each principal loan or credit agreement, indenture, mortgage, note or other Contract creating, guaranteeing or securing evidencing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company Subsidiary from a third party lender, and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which any such Indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary could be required Subsidiary, in each case in excess of $10,000,000, and any Contract relating to purchase or sell, as applicable, the creation of a Lien (other than Company Permitted Encumbrances) with respect to any material asset of the foregoingCompany or any Company Subsidiary;
(viig) any each Contract that requires obligates the Company or any Company Subsidiary to make any advanceloans, loan advances or commitment therefor or provide any credit support for or any capital contribution contributions to, or other investment investments in, any Person (other than the Company or any Company Subsidiary), except for (i) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (ii) extended payment terms for customers in the ordinary course of business or (iii) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of Twenty-Five Million Dollars ($25,000,000)500,000 individually;
(viiih) each Contract that grants any Contract entered into since January 1right of first refusal or right of first offer or similar right with respect to any material assets, 2016 that relates to the sale, transfer rights or other disposition properties of a business or assets by the Company or any Company Subsidiary Subsidiary;
(i) each material Contract relating to the EchoStar XXIV satellite;
(j) each collective bargaining or other labor or works council agreement covering employees of the Company or a Company Subsidiary;
(k) each lease, sublease or license involving real property or equipment pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected is required to result in aggregate payments pay an annual base rental in excess of Twenty-Five Million Dollars ($25,000,000)1,200,000;
(ixl) each Contract settlement agreement entered into since January 1, 2020 (i) with a term exceeding one Governmental Entity, (1ii) year that requires the Company or any Company Subsidiary to pay more than $1,000,000 after the date of this Agreement or (iii) that imposes any material restrictions on the business of the Company or any Company Subsidiary;
(m) each Contract (i) granting to the Company or any Company Subsidiary a material license, covenant not to sue or other right under any Intellectual Property (excluding Contracts for future purchasesSoftware or information technology services that are both (A) generally commercially available on non-discriminatory pricing terms, exchange and (B) not material to the operation, tracking, control or sales use of gassatellites, oil or electric energy in excess the processing of Fifty Million Dollars telemetry data), ($50,000,000ii) granting to any third Person a license, covenant not to sue or other right under any Company IP (other than non-exclusive licenses granted to customers, vendors or service providers in the aggregate after ordinary course in connection with the date sale, distribution or use of this Agreement Company Products or goods or services, including licenses that are merely implied or incidental to such sale, distribution or use), (iii) materially restricting the Company’s or any Company Subsidiary’s use or exploitation of any material Company IP or (iv) governing the development or ownership of Intellectual Property material to the businesses of the Company or any Company Subsidiary (other than Contracts solely between with employees, contractors or consultants entered into in the Company and ordinary course of business);
(n) each Contract with any Top Customer or Top Supplier;
(o) each Contract with a Top Governmental Customer (other than any Contract that is the subject of its wholly-owned Subsidiaries or solely among its wholly owned SubsidiariesSection 2.11(n)); and
(xp) each Contract relating to the operation or maintenance of any Company Major Station with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value expenditures in excess of Ten Million Dollars $1,000,000 per annum ($10,000,000) (other than excluding, for clarity, Contracts solely between with employees of the Company or any Company Subsidiaries which employees operate or maintain such Company Major Stations and excluding any Contracts relating to cleaning, security and catering services provided to such Company Major Station in the ordinary course of its wholly-owned Subsidiaries business). There are no existing breaches or solely among its wholly owned Subsidiaries).
(b) Except as defaults on the part of the Company or any Company Subsidiary under any Material Contract, and, to the knowledge of the Company, there are no existing breaches or defaults on the part of any other Person under any Material Contract, in each case except where such breaches or defaults would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No event has occurred or not occurred through the Company’s or any Company Subsidiary’s action or inaction or, (i) to the knowledge of the Company, through the action or inaction of any third party, that, with notice or the lapse of time or both, would constitute a breach of or default under the terms of any Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each Material Contract is a valid, binding and legally has not been terminated prior to the date of this Agreement, is enforceable obligation of against the Company or one of the applicable Company Subsidiaries, as the case may beSubsidiary that is a party to such Material Contract, and, to the Knowledge knowledge of the Company, of is enforceable against the other parties thereto, in each case subject to laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in all respects effect, affecting creditors’ rights generally, other than as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Prior to the Bankruptcy date of this Agreement, the Company has made available to Parent accurate and Equity Exceptionscomplete copies of each Material Contract in effect as of the date of this Agreement, (ii) each such Company Contract is together with all material amendments and supplements thereto in full force and effect with respect as of the date of this Agreement. Prior to the Company and date of this Agreement, no Top Customer or Top Supplier has canceled, terminated or substantially curtailed its relationship with the Company Subsidiariesor any Company Subsidiary, as the case may be, and given written notice to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (of any intention to cancel, terminate or substantially curtail its relationship with the Company or without notice or lapse of timeany Company Subsidiary, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no other party threatened to do any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (EchoStar CORP), Merger Agreement (DISH Network CORP)
Contracts. (a) Except for this Agreement and the Contracts filed as exhibits to any disclosed in the Filed Company ReportSEC Documents, or set forth in Section 3.15 2.13(a) of the Company Disclosure LetterLetter sets forth a true and complete list, as of the date hereofof this Agreement, neither and the Company nor any Company Subsidiary is a party tohas made available to Parent true and complete copies, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (aA) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person in any manner that is material geographical area, (B) provides for “exclusivity” or any similar requirement in favor of any third party, (C) contains a “take-or-pay” arrangement or (D) any standstill or similar agreement pursuant to which the Company and the or any Company Subsidiaries, taken as a whole, Subsidiaries has agreed not to acquire any assets or securities of another Person;
(biii) requires each Contract under which the Company or any Company Subsidiary licenses, grants or is granted rights in or to conduct any business on a “most favored nations” basis with Intellectual Property from or to any third party or that restricts in any material respect the business of relates to the Company Systems (in each case, other than generally commercially available, off-the-shelf software programs and the Company Subsidiariesother than non-exclusive, taken as a whole, or (cordinary course Contracts licensing Intellectual Property that do not require payments in excess of $5,000,000 per year) provides except for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party such Contracts that restricts in any are not material respect the business of to the Company and the Company Subsidiaries, taken as a whole;
(iiiiv) each Contract to which the Company or any Company Subsidiary is a party that provides for annual payments to or from the Company or any its Subsidiaries receipts in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)20,000,000;
(v) each material Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty, in each case with respect to the creation, formation, governance or control a principal amount in excess of any material partnerships, joint ventures or joint ownership arrangements with third parties$10,000,000;
(vi) each Contract to which the Company or any Company Subsidiary is a party that (A) relates to provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or capital stock or other securities businesses (whether by merger, capital contribution sale of stock, sale of assets or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars $10,000,000 and that ($25,000,000A) in the aggregate, has not yet been consummated or (B) relates to has outstanding any material purchase price adjustment, “earn-out,” indemnification, payment or similar obligations on the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets part of the Company or the any Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars Subsidiary;
($25,000,000vii) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant each Contract to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract is a party that requires obligates the Company or any Company Subsidiary to make any advancecapital commitment, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) expenditure in an amount in excess of Twenty-Five Million Dollars ($25,000,000)10,000,000;
(viii) any each Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary is a party, other than with respect to any entity that is wholly owned by the Company or any wholly owned Company Subsidiary, that relates to the formation, creation, operation, management or control of any legal partnership, limited liability or any joint venture entity or similar arrangement pursuant to which the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any continuing indemnificationPerson;
(ix) each Contract with any Governmental Entity, guarantee, “earnout” or other contingent, deferred or fixed payment obligations in each case that would reasonably be expected to result in aggregate future payments to such Governmental Entity in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement 2,500,000 (other than Contracts solely between the Company and for or in respect of any of its wholly-owned Subsidiaries or solely among its wholly owned SubsidiariesTax); and;
(x) each settlement, conciliation, or similar Contract with a term exceeding one (1) year after the date of this Agreement any Governmental Entity pursuant to which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and or any of its wholly-owned subsidiaries has continuing obligations or involving the payment of more than $5,000,000;
(xi) each collective bargaining or other Contract with any labor union, works council, or other labor organization that is required to be set forth on Section 2.10 of the Company Disclosure Letter; and
(xii) each Contract with or binding upon the Company or any of the Company Subsidiaries or solely among its wholly owned Subsidiaries)any of their respective properties or assets that is with any directors, officers or five percent (5%) stockholders of the Company, other than employment, indemnification, stock option or similar contracts. Each such Contract described in clauses (i) through (xii) above is referred to herein as a “Specified Contract.”
(b) Except as would not have or would not reasonably be expected to have, individually or in Each of the aggregate, a Company Material Adverse Effect, (i) each Company Contract Specified Contracts is a valid, binding and legally enforceable obligation of (except as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company or one of the a Company SubsidiariesSubsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect with respect to as would not reasonably be expected to, individually or in the aggregate, have a Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of Material Adverse Effect. There is no default under any Specified Contract by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no any other party to any such Company Contract is (thereto, and no event has occurred that with the lapse of time or without the giving of notice or lapse both would constitute a default thereunder by the Company or any Company Subsidiary or, to the knowledge of timethe Company, any other party thereto, in each case except as would not reasonably be expected to, individually or both) in breach or default thereunder. The the aggregate, have a Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Avantor, Inc.), Merger Agreement (VWR Corp)
Contracts. (ai) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure LetterSEC Documents, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of there are no Contracts (each such Contract that were required to be filed as an exhibit to any those Company Report SEC Documents under the Exchange Act and the rules and regulations promulgated thereunder. The Company has delivered or listed in Section 3.15 of Made Available to the Company Disclosure LetterParent true and complete copies, a “Company Contract”):of:
(iA) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) all Contracts of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any of its Subsidiaries made in the Ordinary Course of Business involving payments by or to the Company Subsidiary is or its Subsidiaries in excess of $250,000;
(B) all Contracts or legally binding commitments of the Company, any of its Subsidiaries or any of its Affiliates that contain a party that (a) restricts covenant restricting the ability of the Company or any Company Subsidiary of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of the Parent or any of its Subsidiaries) to engage in or compete in any business in any manner that is material with respect to the Company development, manufacturing, marketing or distribution of any of the Company’s current products or services and such Contracts are set forth in Section 3.1(i)(i)(B) of the Company Subsidiaries, taken as a whole, Disclosure Schedule;
(bC) requires all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries) other than offer letters, employment agreements or consulting agreements providing solely for at will employment or services and containing no right to any pay or benefits after employment or services has terminated, and other than those Contracts that are required to be disclosed pursuant to 3.1(i)(i)(D) below;
(D) all employment, consulting, bonus, compensation, severance, or retention agreements or arrangements or similar agreements or arrangements or understandings (whether oral or written) of the Company or any of its Controlled Group Members other than offer letters, employment agreements or consulting agreements providing solely for at will employment and containing no right to severance benefits except as required by applicable law) and a list of all such Contracts is set forth in Section 3.1(i)(i)(D) of the Disclosure Schedule;
(E) all Contracts of the Company or any Subsidiary of the Company pursuant to conduct any business on a “most favored nations” basis with which any third party that restricts is authorized to use, copy, market, distribute or in any material respect other manner exploit any Intellectual Property (as defined below) of the business Company;
(F) all Contracts of the Company and or any Subsidiary pursuant to which the Company Subsidiaries, taken or such Subsidiary is granted rights in Intellectual Property (as a whole, or (cdefined below) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts person and a list of all such Contracts is set forth in any material respect the business Section 3.1(i)(i)(F) of the Company and the Company Subsidiaries, taken as a wholeDisclosure Schedule;
(iiiG) each Contract all Contracts containing “standstill” or similar provisions and a list of all such Contracts is set forth in Section 3.1(i)(i)(G) of the Disclosure Schedule;
(H) all material joint venture, partnership or other similar Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party that provides for payments to or from and a list of all such Contracts is set forth in Section 3.1(i)(i)(H) of the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)Disclosure Schedule;
(ivI) each principal Contract creatingall loan agreements, guaranteeing credit agreements, letters of credit, notes, debentures, bonds, mortgages, indentures, promissory notes and other Contracts relating to the borrowing of money or securing Indebtedness extension of credit other than standard invoice terms for borrowed money payments of invoices in connection with sales of the Company’s products or services (collectively, “Debt Obligations”) pursuant to which any material indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);of any Debt Obligations of any other Person; and
(vJ) each material Contract with respect to the creation, formation, governance or control all powers of any material partnerships, joint ventures or joint ownership attorney and Contracts and arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Subsidiary of the Company Subsidiary could be required to purchase has any obligations or sellliabilities (whether absolute, accrued, contingent or otherwise), as applicableguarantor, surety, co-signer, endorser, co-maker, or otherwise in respect of any obligation of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advancePerson, loan or commitment therefor or provide any credit support for or any capital contribution to, maintenance or other investment in, any Person (other than the Company similar agreements or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)arrangements.
(bii) Except as would not have Each Contract or would not reasonably be expected to have, individually agreement referenced in Sections 3.1(i)(i)(A) through (I) above (notwithstanding any disclosures contained in Sections 3.1(i)(i)(A) through (I) of the Disclosure Schedule) and each Contract or agreement disclosed in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract Disclosure Schedule is in full force and effect (except for those Contracts that have expired in accordance with respect their terms) and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms (subject to (A) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, moratorium, reorganization, receivership and similar laws relating to or affecting the enforcement of the rights and remedies of creditors generally and (B) principles of equity (regardless of whether considered and applied in a proceeding in equity or at law)), of the Company or each Subsidiary, as applicable, and the Company or its Subsidiaries, as the case may beapplicable, have performed all of their material obligations under, and is not in violation or breach of or default under, any such Contract or agreement except for such violation or breach which could not reasonably be expected to have a Material Adverse Effect on the Company. To the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice agreement have performed all of their obligations under, and are not in violation or lapse breach of time, or both) in breach or default thereunder. The Company has made available under, any such Contract or agreement except for such violations or breaches which could not reasonably be expected to Parent true and complete copies of each Company Contract (including, for have a Material Adverse Effect on the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Company.
Appears in 2 contracts
Sources: Merger Agreement (Virage Inc), Merger Agreement (Autonomy Corp PLC)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.11(a) of the Company Disclosure LetterSchedule sets forth a complete and accurate list of all Company Material Contracts. As used in this Agreement, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Material Contract”):
” means (i) any Contract required agreement or contract pursuant to be filed by which the Company and its Subsidiaries is reasonably likely to spend, in the aggregate, more than $250,000 with respect to any such agreement or contract during the current fiscal year or during the next fiscal year, (ii) any non-competition or other agreement that prohibits or otherwise restricts, in any material respect, the Company or any of its Subsidiaries from freely engaging in any business material to the Company and its Subsidiaries, taken as a whole, anywhere in the world, (iii) any agreement or contract to which the Company or any of its Subsidiaries is a party involving research, development or the license of any Company Intellectual Property (other than non-exclusive licenses of Company Intellectual Property made in the Ordinary Course of Business), (iv) any agreement or contract to which the Company or any of its Subsidiaries is a party granting a right of first refusal, or right of first offer or comparable right with respect to any material Company Intellectual Property, (v) any agreement or contract to which the Company or any of its Subsidiaries is a party relating to a material joint venture, partnership or other material arrangement involving a sharing of profits, losses, costs or liabilities with another person, (vi) any agreement or contract which would be binding on an Affiliate of the Company or the Buyer or an Affiliate of the Buyer and (vii) any “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material SEC) with respect to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) filed with the SEC on or following March 7, 2013 or included in the aggregate after Exhibit List filed with the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate Company’s Form 10-K filed on the SEC’s ▇▇▇▇▇▇);
(iv) each principal Contract creating▇ system on March 7, guaranteeing or securing Indebtedness for borrowed money of the 2013. The Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect has made available to the creation, formation, governance or control Parent a complete and accurate copy of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Contract. Each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Material Contract is in full force and effect and is enforceable in accordance with respect its terms, subject to the Company Bankruptcy and Equity Exception. Neither the Company Subsidiaries, as the case may be, and to the Knowledge nor any of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andits Subsidiaries nor, to the Knowledge of the Company’s Knowledge, no any other party to any such Company Material Contract is in material violation of or in material default under (with nor does there exist any condition, which, upon the passage of time or without the giving of notice or lapse both, would cause such a violation of time, or both) in breach or default thereunder. The under), nor will the consummation of the Merger and the other transactions contemplated by this Agreement result in any material violation of or material default under (x) any loan or credit agreement, note, bond, mortgage or indenture to which it is a party or by which it or any of its properties or assets is bound or (y) any Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Sonus Networks Inc), Merger Agreement (Performance Technologies Inc \De\)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereofSchedule corresponding to this Section 3.13(a), neither the Company nor any Company Subsidiary is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of collectively, the Company Disclosure Letter, a “Company ContractMaterial Contracts”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts expressly and materially limits the ability of the Company or any Company Subsidiary to engage compete in or conduct any line of business or compete with any Person or in any business in geographic area or during any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business period of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholetime;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(viiii) any Contract that requires the Company with any labor union or labor association representing any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than employee of the Company or any Company Subsidiary;
(iii) any Contract for the acquisition or sale of any assets or securities of any Person having a fair market value in excess of Twenty-Five Million Dollars ($25,000,000)1,000,000;
(viiiiv) any Contract entered into since January 1, 2016 that relates relating to the sale, transfer or other disposition incurrence of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement Indebtedness (other than Contracts solely borrowings between the Company and any of its wholly-owned Subsidiaries or solely among its wholly between any of the Company’s wholly-owned Subsidiaries) involving amounts in excess of $500,000;
(v) any Contract pursuant to which the Company or any Company Subsidiary has any payment obligations (whether contingent or otherwise) that could arise after the date of the Team Balance Sheet in respect of earn-outs, deferred purchase price arrangements, indemnities or similar arrangements that have arisen in connection with investments in or acquisitions or dispositions of companies or businesses;
(vi) any Material Contract providing for future payments that are conditioned upon, in whole or in part, a change of control or similar event;
(vii) any material joint venture or partnership agreement or similar Contract;
(viii) any Contract containing any material restrictions on acquisitions of the equity of the counterparty thereto;
(ix) other than any Contract involving consideration of less than $500,000, (A) any Contract granting or obtaining any right to use or practice any rights under any material Company Intellectual Property or material intellectual property of any other Person (other than licenses for off-the-shelf-standard commercially available software), (B) any material information technology service Contract and (C) any material intellectual property outsourcing Contract;
(x) other than any Contracts with physicians that are not employees of the Company or any Company Subsidiary, any employment, consulting, severance or similar agreement with any employee, independent contractor or consultant of the Company or any Company Subsidiary whose current annual cash compensation is in excess of $300,000 that is not terminable by the Company or such Company Subsidiary by notice of not more than 180 days for a cost of less than $200,000;
(xi) any Contract restricting the payment of dividends or other distributions; and
(xxii) each Contract with a term exceeding one (1) year after any Contracts relating to the date leasing of this Agreement which is a financial derivative interest rate hedge with a value in excess any real or personal property providing for annual rentals of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries 250,000 or solely among its wholly owned Subsidiaries)more.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is a valid, binding and legally enforceable obligation of the Company or one of the a Company SubsidiariesSubsidiary, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may beeffect, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge of the Company, no any other party thereto is, or is alleged in writing to be, in violation, default or breach in any material respect under the terms of any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunderContract. The Company has made available to Parent Purchaser prior to the date hereof true and complete correct copies of each Company Contract (includingall Material Contracts, for the avoidance of doubt, including all material amendments, modifications, extensions, or renewals with respect amendments and supplements thereto).
Appears in 2 contracts
Sources: Merger Agreement (Erie Shores Emergency Physicians, Inc.), Merger Agreement (Team Health Inc)
Contracts. (a) Except for the Contracts as filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure LetterSEC Documents filed prior to the date hereof, there is no Company Agreement which, as of the date hereof, neither the Company nor any Company Subsidiary (A) is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “"material contract” pursuant to " (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act SEC), (B) involves aggregate expenditures in excess of $2 million, (C) involves annual expenditures in excess of $1 million in any twelve month period and was not entered into in the ordinary course of business, (D) that has not been so filed;
contains "take or pay" provisions applicable to the Company or any Company Subsidiary, (iiE) each Contract that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any Company Subsidiary, or which restricts the conduct of any line of business by the Company or any Company Subsidiary, or any geographic area in which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a wholeconducts business, (bF) requires the Company or contains any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (cx) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to term under which the Company or any Company Subsidiary is licenses Intellectual Property or Intellectual Property Rights from a third party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gasOrdinary Course Inbound Licenses), transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (Cy) contains a put, call, right of first refusal or similar right pursuant to term under which the Company or any Company Subsidiary could be required licenses Intellectual Property or Intellectual Property Rights to purchase any third party (other than Ordinary Course Outbound Licenses), (G) that is a partnership, joint venture or sellsimilar arrangement, unless immaterial to the Company and the Company Subsidiaries or (H) which would prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions. Each contract of the type described above in Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a "Company Material Agreement." Each Company Material Agreement is valid and binding on the Company and each Company Subsidiary that is a party thereto and, to the Company's knowledge, each other party thereto, as applicable, any and in full force and effect (except that (x) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors' rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the foregoing;
(vii) court before which any Contract that requires proceeding therefor may be brought), and the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any and each Company Subsidiary has any continuing indemnificationperformed all obligations required to be performed by it under each Company Material Agreement and, guaranteeto the Company's knowledge, “earnout” or each other contingentparty to each Company Material Agreement has performed all obligations required to be performed by it under such Company Material Agreement, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none . None of the Company or any Company Subsidiary is (with or without notice or lapse of timehas knowledge of, or both) in breach has received written notice of, any violation or default under (or any condition which with the passage of time or the giving of notice would cause such Company Contract and, to the Knowledge a violation of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The under) any Company has made available to Parent true and complete copies of each Material Agreement except for violations or defaults that would not have, individually or in the aggregate, a Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Contracts. (a) Except for as set forth on Section 4.8 of the Contracts Company Disclosure Schedule or as filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure LetterSEC Documents, and except for this Agreement, as of the date hereof, neither none of the Company nor any Company Subsidiary Acquired Companies is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report Contract, arrangement, commitment or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):understanding:
(i) any Contract required to be filed by the Company as that is a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act that has not been so filedExchange Act);
(ii) each Contract pursuant to which any Acquired Company received customer revenues for the 2017 fiscal year in excess of $2,500,000;
(iii) evidencing a commitment of any Acquired Company to make a capital expenditure or any Company Subsidiary is loan in excess of $2,000,000 (except with respect to equipment lease financing in the ordinary course of business);
(iv) (A) containing a party that (a) restricts covenant limiting the ability of the any Acquired Company to compete or any Company Subsidiary to engage in any line of business or to compete with any Person in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a wholegeographic area, (bB) requires the requiring any Acquired Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeparty, or (cC) provides providing for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)party;
(v) each material relating to or evidencing Indebtedness or any guarantee of Indebtedness by any Acquired Company in excess of $4,000,000, other than any such Contract with respect to between or among the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesAcquired Companies;
(vi) each Contract that granting to an Acquired Company the right to use or register any material Intellectual Property Assets (Aother than standard form contracts granting rights to use readily available off-the-shelf software), restricting the right of an Acquired Company to use or register any material Intellectual Property Assets, or granting to a third party the right to use or register any material Intellectual Property Assets, including any material license agreements, coexistence agreements, and covenants not to ▇▇▇;
(vii) relates to providing for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business), businesses (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other securities equity interests of a third party that (by merger, capital contribution A) has not yet been consummated or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreementhas outstanding any material purchase price adjustment, directly or indirectly“earn-out”, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by mergerindemnification, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal payment or similar right pursuant to which obligations on the Company or part of any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)Acquired Company;
(viii) any Contract entered into since January 1, 2016 the ultimate contracting party of which is a Governmental Entity and that relates is material to the sale, transfer Acquired Companies’ business (including any subcontract with a prime contractor or other disposition of a business or assets by the Company or any Company Subsidiary pursuant subcontractor who is party to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000such Contract);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between with respect to any partnership that is wholly owned by the Company and or any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andSubsidiary of the Company, relating to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which an Subsidiary of the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(x) each Contract with a term exceeding one prohibiting, limiting, conditioning or in any way restricting the sale of any businesses or assets of the Company; or
(1xi) year after that is the date type of this Agreement which is a financial derivative interest rate hedge with a value in excess contract or arrangement that would be required to be disclosed under Item 404 of Ten Million Dollars ($10,000,000) (other than Contracts solely between Regulation S-K under the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Securities Act.
(b) Except as would Each Contract, arrangement, commitment or understanding of the type described above in this Section 4.8, whether or not have or would not reasonably be expected to have, individually or set forth in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation Section 4.8 of the Company Disclosure Schedule is referred to herein as a “Material Contract”. Except Material Contracts that have expired or one terminated by their terms, all of the Company SubsidiariesMaterial Contracts are valid and binding on the Acquired Companies, as the case may be, and, to the Knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy as applicable, and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the 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. No Acquired Company and the Company Subsidiaries, as the case may behas, and to the Knowledge of the Company, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act, and (iii) none of the Company no event or any Company Subsidiary is (condition exists, which with or without notice or notice, lapse of time, time or both) in breach or both would constitute a default under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect. No Acquired Company has received written notice of any of the foregoing or any written notice from any other party under any Material Contract of an intent to terminate, cancel, materially change the scope of any rights under or fail to renew such Material Contract, and no Acquired Company Contract andor, to the Knowledge knowledge of the Company, no any other party to any such Company Contract is (with Material Contract, has repudiated in writing any provision thereof. All contracts, agreements, arrangements and understandings by and between any of the Acquired Companies, on the one hand, and TA Associates Management, L.P. and any of its Affiliates or their respective successors or permitted transferees, on the other hand, will terminate as of the Closing without notice any action or lapse further liability or obligation on the part of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies any of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect parties thereto).
Appears in 2 contracts
Sources: Merger Agreement (Amplify Snack Brands, INC), Merger Agreement (Hershey Co)
Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to Contribution, Assumption and Purchase Agreement, any Company Report, Plans or as set forth in Section 3.15 3.16(a) of the Company Disclosure LetterSchedule, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary of its Subsidiaries is a party toto or expressly bound by, and none of their respective properties or assets is bound by subject to, any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):that
(i) any Contract required to be filed by the Company as is (x) a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act that Act) or is (y) a Contract attached as an exhibit to a Current Report on Form 8-K filed by the Company with the SEC under which the Company or any of its Subsidiaries still has not been so filedmaterial rights or obligations;
(ii) each relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement;
(iii) is (x) an indenture, credit agreement, loan agreement, security agreement, guarantee, credit enhancement, note, mortgage or other Contract to which providing for or securing Indebtedness (other than capital lease obligations) of the Company or any Company Subsidiary of its Subsidiaries (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $250,000 or (y) a capital lease obligation in excess of $1,000,000;
(iv) is (x) an Inbound License Agreement, (y) an Outbound License Agreement or (z) a Technology Agreement;
(v) is a party that settlement, conciliation or similar Contract with any Governmental Authority which (ax) restricts would require the Company or any of its Subsidiaries to pay consideration of more than $250,000 after the date of this Agreement or (y) would otherwise limit the operation of the Company (or Surviving Corporation or Parent or any of their respective Affiliates) in any material respect after the Closing;
(vi) limits the ability of the Company or any Company Subsidiary of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of the Surviving Corporation or Parent or any of their respective Affiliates) (x) to engage in any line of business, to compete with any Person or compete operate at any geographic location, or to sell or supply any service (including any non-compete, exclusivity or “most-favored nation” provisions), or (y) to purchase or acquire an ownership interest in any business other entity, or includes a covenant not to ▇▇▇ a third party, except, in the case of (x) and (y), for any manner such Contract that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company may be canceled without penalty or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business other liability of the Company and the Company Subsidiaries, taken as a whole, upon notice of ninety (90) days or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeless;
(iiivii) each is a Contract to under which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any of its Subsidiaries in excess is (w) a lessee of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services salesreal property, (Bx) Contracts for future purchasesa lessee of, exchange or sales holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third person or entity, (y) a lessor of gasreal property, coal, oil or electric energy and (Cz) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money a lessor of any tangible personal property owned by the Company or any of the Company Subsidiaries its Subsidiaries, in each case of (w), (x), (y) and (z), which requires future payments in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)1,000,000 per annum;
(viii) involves any Contract entered into since January 1directors, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars executive officers ($25,000,000);
(ix) each Contract with a as such term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) is defined in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its whollyExchange Act) or five-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation percent stockholders of the Company or one of the Company Subsidiaries, as the case may be, andor, to the Knowledge of the Company, any of its Affiliates (other than the Company) or immediate family members of any of the foregoing;
(ix) is a consulting agreement requiring the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 per annum or a collective bargaining agreement;
(x) provides for (x) “earn-outs” or similar contingent payment obligations by the Company or any of its Subsidiaries or (y) continuing indemnification obligations outside the ordinary course consistent with past practice by the Company or any of its Subsidiaries, in each case of (x) and (y) other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each than any such Company Contract is in full force and effect with respect to which there are no further obligations of more than $250,000 under such provisions;
(xi) was entered into after January 1, 2012, or has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interest of another Person or any assets or properties with a value of more than $250,000, excluding acquisitions or dispositions of equipment or other personal assets (other than any Vessels) in the ordinary course consistent with past practice;
(xii) (x) contains a standstill or similar provision pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of a third party, (y) contains any “non-solicitation”, “no hire” or similar provision which restricts the Company or any of its Subsidiaries from soliciting, hiring, engaging, retaining or employing such third party’s current or former employees in a manner or to an extent that would materially interfere with the business of the Company or any of its Subsidiaries or (z) contains a confidentiality obligation, except for (A) any agreement containing a confidentiality obligation entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice and (B) any non-disclosure agreement entered into in connection with a potential sale of the Company or one or more of its businesses;
(xiii) prohibits 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;
(xiv) involves a grant to any Person of any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy any material assets, rights or properties of the Company or any of its Subsidiaries;
(xv) would be reasonably expected to involve aggregate payments by the Company or any of its Subsidiaries, or to the Company or any of its Subsidiaries, of more than $1,000,000 per annum, other than any ▇▇▇▇ of lading and any such Contract that may be canceled without penalty or other liability of the Company upon notice of thirty (30) days or less;
(xvi) involves any obligation to provide equity or debt financing to any Person (other than any Subsidiary of the Company that is not an Acquired Entity), or provide any guarantee or credit enhancement to, or assume any liability or obligation of, any Person (other than any Subsidiary of the Company that is not an Acquired Entity) in an amount in excess of $250,000; or
(xvii) with a Governmental Authority, other than (x) any ▇▇▇▇ of lading or other one-time shipping Contracts or (y) any non-customer Contract for services provided to the Company in the ordinary course of business consistent with past practice that is not material to the Company’s business operations. Each Contract of the type described in this Section 3.16(a) is referred to herein as a “Company Material Contract.”
(b) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent the Company Subsidiariesor such Subsidiary is a party thereto, as the case may beapplicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms (subject to the other parties thereto Bankruptcy and (iii) none Equity Exception). Neither the Company nor any Subsidiary of the Company is in material breach of or material default under the terms of any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to Material Contract. To the Knowledge of the Company, no other party to any such Company Material Contract is (with in material breach of or without material default under the terms of any Company Material Contract. No Event or condition has occurred that constitutes, or, after notice or lapse of time, time or both, would constitute, a material default on the part of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such material default, Event or condition.
(c) in breach or default thereunder. The Company has made available to Parent true and Merger Sub complete and correct copies of each of the Company Material Contracts in effect as of the date hereof.
(d) Except as set forth on Section 3.16(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any guarantee, performance bond, bid bond or other similar Contract (including, for in any amount relating to the avoidance of doubt, all material amendments, modifications, extensionsTransferred Assets or the Transferred Liabilities, or renewals with respect thereto)guaranteeing any obligation, payment or performance of or by any of the Acquired Entities.
Appears in 2 contracts
Sources: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits Each Material Contract to any Company Report, or set forth in Section 3.15 of which the Company Disclosure Letteror any Subsidiary is a party is a valid and binding agreement, as and is in full force and effect in all material respects (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of the date hereofcreditors’ rights and subject to general principles of equity), and neither the Company nor any Subsidiary, as applicable, nor, to the Knowledge of the Company, any other party thereto, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. Neither the Company nor any Subsidiary is a party tohas assigned, and none of their respective properties delegated, or assets is bound by otherwise transferred any of the following categories of Contracts (each such Contract required to be filed as an exhibit its rights or obligations with respect to any Material Contracts. The Company Report or and each Subsidiary has made available to Parent and Purchaser a true and correct copy of each Material Contract listed in Section 3.15 on Schedule 3.19(b).
(b) Schedule 3.19(b) lists each Contract of the Company Disclosure Letterand its Subsidiaries of the type described below (collectively, a the “Company ContractMaterial Contracts”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is required to pay, has paid or is entitled to receive or has received an amount in excess of $100,000 during the current fiscal year (other than purchase orders for Inventory entered into in the ordinary course of business);
(ii) all employment contracts and sales representatives contracts pursuant to which an employee or a party that sales representative is entitle to receive annual compensation in excess of $100,000;
(aiii) restricts all sales, agency, factoring, commission and distribution contracts in excess of $100,000 annually;
(iv) all joint venture, strategic alliance and partnership agreements;
(v) all licensing agreements, including agreements licensing Intellectual Property rights, other than “shrink wrap” or “click wrap” software licenses;
(vi) all secrecy, confidentiality and nondisclosure agreements restricting the ability of the Company or any Company Subsidiary to freely engage in or compete the Business in any business in any manner that is material respect;
(vii) all Contracts relating to the Company patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and the Company Subsidiariesother Intellectual Property rights;
(viii) all guarantees, taken as a whole, (b) requires privacy policies and indemnification arrangements made or provided by the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than entered into in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one all Website hosting contracts or agreements;
(1x) year after the date of this Agreement for future purchasesall agreements relating to real property, exchange including any real property lease, sublease, or sales of gasspace sharing, oil license or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between occupancy agreement, whether the Company and is granted or is granting rights thereunder to occupy or use any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)premises; and
(xxi) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)all agreements relating to outstanding Indebtedness.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Kline Hawkes Pacific Advisors, LLC), Stock Purchase Agreement (Vector Intersect Security Acquisition Corp.)
Contracts. (aA) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 4.01(i) of the Company Disclosure LetterSchedule contains a complete and correct list, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any each of the following categories of Contracts (each such Contract required to be filed described below in this Section 4.01(i)(A) that are in effect as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):date of this Agreement:
(i) any each Contract required to be filed by which the Company as or any of its Subsidiaries is a “party that restricts in any material contract” pursuant respect the ability of the Company or any of its Subsidiaries to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedcompete with any person in any area or to engage in any activity or business;
(ii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party providing for exclusivity or any substantially similar requirement or that (a1) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts of its Subsidiaries in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c2) provides for “exclusivity,” rights of first refusal or offer after the Effective Time would restrict Parent or any similar requirement or right in favor of any third party that restricts its Subsidiaries in any material respect, in each case with respect to the business development, manufacture, marketing or distribution of their respective services, products or product candidates, including Covered Product Candidates, or with respect to the Company and granting of licenses or otherwise with respect to the Company Subsidiaries, taken as a wholeoperation of their businesses;
(iii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party that provides for payments to or from with (1) any affiliate of the Company or any of its Subsidiaries, (2) any current director, officer or employee of the Company or any of its Subsidiaries in excess of Fifty Million Dollars ($50,000,000each, a "Company Personnel") in the aggregate after the date of this Agreement (other than the Company Benefit Plans and the Company Benefit Agreements) or (A3) Contracts for transportation or storage any person known by the Company to be an affiliate of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)any Company Personnel;
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of to which the Company or any of its Subsidiaries is a party under which the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)has incurred any material indebtedness;
(v) each material Contract with to which the Company or any of its Subsidiaries is a party (other than the Company Benefit Plans and the Company Benefit Agreements) under which the Company or any of its Subsidiaries has agreed to issue, deliver, sell, pledge, encumber or grant registration rights in respect of any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any such stock, interests or securities or any stock appreciation rights, restricted stock units, stock-based performance units, "phantom" stock awards or other rights that are linked to the creation, formation, governance value of Company Common Stock or control the value of the Company or any material partnerships, joint ventures or joint ownership arrangements with third partiespart thereof;
(vi) each Contract that (A) relates to which the acquisition Company or any of assets (its Subsidiaries is a party creating or granting a Lien, other than (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been recorded, (2) Liens for assessments and other governmental charges or landlords', carriers', warehousemen's, mechanics', repairmen's, workers' and similar Liens incurred in the ordinary course of business) , consistent with past practice, in each case for sums not yet due and payable or capital stock due but not delinquent or other securities (being contested in good faith by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregateappropriate proceedings, (B3) relates to the disposition (other than Liens incurred in the ordinary course of business, consistent with past practice, in connection with workers' compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations, (4) after Liens securing equipment subject to any lease required to be capitalized on the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries Company's balance sheet in accordance with a total consideration of more than Twenty-Five Million Dollars GAAP and ($25,000,0005) Liens incurred in the aggregate ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of properties or any capital stock or other securities assets encumbered thereby (by mergercollectively, capital contribution or otherwise"Permitted Liens");
(vii) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant each Contract to which the Company or any Company Subsidiary could be required of its Subsidiaries is a party granting the other party to purchase such Contract or sell, as applicable, any of the foregoing;a third party "most favored nation" pricing or terms that
(vii1) any Contract that requires applies to the Company or any Company Subsidiary of its Subsidiaries or (2) following the Effective Time, would apply to make any advance, loan or commitment therefor or provide any credit support for Parent or any capital contribution to, or other investment in, any Person (of its Subsidiaries other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)Surviving Corporation;
(viii) any each Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any of its Subsidiaries is a party containing any "non-solicitation", "no-hire" or substantially similar provision that restricts in any material respect the Company Subsidiary has or any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)its Subsidiaries;
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between to which the Company and or any of its whollySubsidiaries is a party for any joint venture (whether in partnership, limited liability company or other organizational form) or material alliance or similar material arrangement, including each material Contract relating to research, clinical trial, development, distribution, sale, supply, license, marketing, co-owned promotion, manufacturing or other commercial activities by the Company or any of its Subsidiaries or solely among its wholly owned Subsidiaries); andby third parties, and each material Contract with any contract research organizations, laboratory testing companies, medical institutions, clinical investigators, contract manufacturing organizations and third party manufacturers;
(x) each Contract to which the Company or any of its Subsidiaries is a party with any Governmental Entity;
(xi) each Contract to which the Company or any of its Subsidiaries is a term exceeding one party with any beneficial owner of any shares of Company Common Stock, or securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any shares of Company Common Stock, where such Contract provides for consideration payable to such beneficial owner or any of its affiliates as a result of the tender of the shares of Company Common Stock beneficially owned by such beneficial owner in the Offer;
(xii) each Contract that governs or otherwise applies to the Intellectual Property Rights owned by, licensed by, licensed to, used by or held for use by the Company or any of its Subsidiaries (excluding: (1) year after non-disclosure or confidentiality agreements entered into in the date ordinary course of business consistent with past practice; (2) Contracts entered into in the ordinary course of business consistent with past practice with independent contractors, consultants, contract research organizations, laboratory testing companies, medical institutions, clinical investigators, contract manufacturing organizations, third party manufacturers and other vendors not otherwise required to be disclosed pursuant to any other subsection of this Agreement Section 4.01(i)(A); and (3) "material transfer agreements" and evaluation agreements entered into in the ordinary course of business consistent with past practice that are not otherwise required to be disclosed pursuant to any other subsection of this Section 4.01(i)(A)) and each Contract containing any material option or future material right in respect of any such Intellectual Property Rights;
(xiii) each Contract to which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and or any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).is a party in respect of Leased Real Property; and
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ixiv) each Company Contract is a valid, binding and legally enforceable obligation of to which the Company or one any of its Subsidiaries is a party containing any standstill provisions which in any material respect limits (1) the Company Subsidiaries, as ability of any person to acquire the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none securities or assets of the Company or any Company Subsidiary is of its Subsidiaries or (with or without notice or lapse of time, or both2) in breach or default under any such Company Contract and, to the Knowledge ability of the Company, no other party Company or any of its Subsidiaries to acquire the securities or assets of any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)person.
Appears in 2 contracts
Sources: Merger Agreement (Kosan Biosciences Inc), Merger Agreement (Bristol Myers Squibb Co)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.18 of the Company Disclosure LetterLetter sets forth, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Original Agreement, a list of:
(i) all Company Contracts (each such Contract required to be described in, or filed as an exhibit to to, any Company Public Report that are not so described or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract filed as 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 that has not been so filedor the Exchange Act, as the case may be;
(ii) each all Company Contracts that, to the Knowledge of the Company (x) impose any material limitations, restrictions or penalties on the Company’s manufacture, sale or distribution of any current or future Company Product or a material aspect of the Company’s business, or which after the Effective Time could impose similar restrictions on Parent or any of its Subsidiaries, with respect to any of their respective products or services or a material aspect of the operation of their businesses, or (y) grant the other party to such Company Contract or a third party “most favored nation” pricing or terms that (1) apply to which the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(iii) all material Company Subsidiary is Contracts providing for (A) indemnification (including with respect to Intellectual Property Rights) or (B) any material guaranty of third party obligations, in each of the foregoing cases entered into outside the ordinary course of business;
(iv) all material Company Contracts relating to revenue or profit-sharing joint ventures (whether in partnership, limited liability company or other organizational form);
(v) all Company Contracts with any Governmental Entity (other than ordinary course customer Contracts providing for payments below $1,000,000 and pursuant to which the counterparty does not have any rights to the Company’s or its Subsidiaries products or services or Company Intellectual Property Rights other than its rights to use the products or services sold under such Company Contract as a party customer);
(vi) all Company Contracts entered into in the last five years in connection with the settlement or other resolution of any Legal Action that (a) restricts has any material continuing obligation, liability or restriction on the ability part of the Company or any of its Subsidiaries;
(vii) (A) all revenue-generating Company Subsidiary Contracts that were entered into after January 1, 2009 or were entered into before January 1, 2009 and remain in effect with the ten largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries in the fiscal year ended December 31, 2010) and that have material, known, unfulfilled obligations on behalf of the customer, and (B) to engage the extent not disclosed pursuant to clause (vii)(A), the ten largest revenue generating Company Contracts (determined on the basis of revenues received by Company or any of its Subsidiaries in the fiscal year ended December 31, 2010);
(viii) all Company Contracts that were entered into after January 1, 2009 or compete were entered into before January 1, 2009 and remain in effect with the ten largest suppliers to the Company and its Subsidiaries (determined on the basis of amounts paid by the Company or any business of its Subsidiaries in any manner the fiscal year ended December 31, 2010) and that is have material, known, unfulfilled obligations on behalf of the supplier. The Company Contracts referred to in clauses (i) through (viii) of this Section 3.18(a) and the Company IP Contracts are collectively referred to in this Agreement as “Company Material Contracts.” The Company has made available to Parent or its Representatives correct and (except for redaction of certain information in certain Company Contracts) complete copies of all Company Material Contracts.
(b) Except for such matters as would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company its Subsidiaries, taken as a whole, (bi) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a all Company Material Adverse EffectContracts are valid and binding, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect and enforceable in accordance with respect their respective terms, except (A) as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws of general application affecting or relating to the Company enforcement of creditors’ rights generally and (B) subject to general principles of equity, whether considered in a proceeding in Law or in equity (the “Bankruptcy and Equity Exception”), (ii) neither the Company Subsidiariesnor any of its Subsidiaries is in violation or breach of, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is in default (with or without notice or the lapse of time, time or both) in breach or default under under, any such Company Contract Material Contracts and, (iii) to the Knowledge of the Company, no other party to any such Company Contract Person is in material violation or breach of, or in default (with or without notice or the lapse of time, time or both) in breach or default thereunder. The under, any Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contracts.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (CSR PLC), Agreement and Plan of Merger (Zoran Corp \De\)
Contracts. (a) Except for the All Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit exhibits to any the Company Report or listed SEC Documents have been so filed in a timely manner. Section 3.15 3.11(a) of the Company Disclosure Letter, Letter sets forth a “Company Contract”):
(i) any Contract required to be filed by true and complete list of each of the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract following Contracts to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary or any of their assets or businesses are bound (and any amendments, supplements and modifications thereto):
(1) any Contract that is a “material contract” (aas such term is defined in Item 601(b)(10) restricts of Regulation S-K of the Exchange Act other than any such Contract that is not required to be filed under clause (iii)(C) thereof);
(2) any employment Contract that has an aggregate future liability in excess of $1,000,000 and is not terminable by the Company or a Company Subsidiary by notice of not more than 60 days;
(3) any collective bargaining agreement or other Contract with any labor organization, union or association;
(4) any Contract that limits in any material respect the ability of the Company or any Company Subsidiary (or, following the consummation of the Transactions, would limit in any material respect the ability of Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company) to engage in or compete in any line of business or with any Person or in any manner geographic area;
(5) any Contract that would be required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(6) any Contract for the lease of real property by the Company or any Company Subsidiary that by its terms calls for aggregate annual rent payments of more than $2,000,000 by the Company and the Company Subsidiaries;
(7) any license, sublicense, option or other Contract relating in whole or in part to the Company Intellectual Property (including any license or other Contract under which the Company or a Company Subsidiary is licensee or licensor of any Intellectual Property) or to any Technology, in each case material to the Company and the Company Subsidiaries, taken as a whole, (b) requires other than licenses granted by the Company or any Company Subsidiary Subsidiaries to conduct any business on a “most favored nations” basis with any third party clients in the Ordinary Course of Business or license agreements for software that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeis generally commercially available;
(iii8) any Contract or series of related Contracts relating to indebtedness for borrowed money (i) each in excess of $5,000,000 or (ii) that becomes due and payable as a result of the Transactions;
(9) any Contract to under which the Company or any a Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreementhas, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make made any advance, loan loan, extension of credit or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any a Company Subsidiary) ), in any such case that is in excess of Twenty-Five Million Dollars ($25,000,000)10,000,000;
(viii10) any Contract entered into since January 1, 2016 that relates to the sale, transfer provides for any standstill or other disposition of a business or assets by the Company or any Company Subsidiary pursuant similar obligations to which the Company or any Company Subsidiary is subject or a beneficiary thereof, which is material to the Company and Company Subsidiaries taken as a whole (or, following the consummation of the Transactions, would be material to Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company);
(11) any Contract (including a purchase order) with any of the Company’s top-50 suppliers (measured by dollar volume of purchases of the Company during the twelve months ended June 30, 2010);
(12) any master services agreement (or similar master agreements), human resources services agreement, administrative services agreement or similar client agreement pursuant to which the Company and/or any of the Company Subsidiaries provides (i) services or products to any client in its benefits outsourcing segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year, (ii) services or products to any client in its HR BPO segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year or (iii) services or products to any client in its consulting segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year;
(13) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by the Company or any Company Subsidiary with any other Person involving a potential combined commitment or payment by the Company and any Company Subsidiary in excess of $5,000,000 annually;
(14) any other Contract not otherwise required to be disclosed pursuant to this Section 3.11(a) that has an aggregate payment obligation to any continuing indemnificationPerson in excess of $20,000,000 and is not terminable by the Company or a Company Subsidiary by notice of not more than 60 days; or
(15) any Contract that is material to the business of the Company and the Company Subsidiaries, guaranteetaken as a whole, “earnout” that would or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess prevent, materially delay or impair the consummation of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Transactions.
(b) Except To the Knowledge of the Company, all Contracts set forth or required to be set forth in Section 3.11(a) of the Company Disclosure Letter or filed or required to be filed as would not have exhibits to the Company SEC Documents (the “Company Contracts”) are valid, binding and in full force and effect and are enforceable by the Company or would not reasonably the applicable Company Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be expected brought and except for such failures to havebe valid, binding, in full force and effect or enforceable that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to . To the Knowledge of the Company, the other parties thereto and (iii) none of Company or the applicable Company Subsidiary has performed all material obligations required to be performed by it under the Company or any Company Subsidiary Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default under in any such Company Contract material respect thereunder and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder. The Since October 1, 2009, to the Knowledge of the Company, neither the Company nor any of the Company Subsidiaries has made available to Parent true and complete copies received written notice of each Company Contract (includingany actual, for the avoidance of doubtalleged, all material amendments, modifications, extensionspossible or potential violation of, or renewals with respect thereto)failure to comply with, any material term or requirement of any Company Contract. To the Knowledge of the Company, neither the Company nor any of the Company Subsidiaries has received any written notice of the intention of any party to terminate any Company Contract.
Appears in 2 contracts
Sources: Merger Agreement (Aon Corp), Merger Agreement (Hewitt Associates Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set Schedule 4.10(a) sets forth in Section 3.15 a complete and accurate list of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any all of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in a beneficiary or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to by which the Company or its assets are subject: (i) Contracts under which amounts paid or expected receipts or expenditures exceed $100,000 in the current or any future calendar year, including Contracts with subcontractors and suppliers; (ii) requiring the Company Subsidiary is a party to indemnify any Person on terms that provides are not customary; (iii) pursuant to which any materials are sole-sourced to the Company which cannot be obtained from another third party; (iv) constituting any notes, debentures, bonds, or other Contracts for payments the borrowing or lending of money (including loans to or from the Company officers, directors, members, partners, or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money shareholders of the Company Company), Contracts or arrangements for a line of credit or for a guarantee of, or other undertaking in connection with, the Indebtedness of any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
Person; (v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
Governmental Entity; (vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) under which a representative or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
sales agency relationship is created; (vii) any Contract that requires limiting or restraining the Company from engaging or competing in any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, lines of business with any Person (other than standard non-disclosure agreements, none of which materially restrict competition other than by confidentiality, non-solicitation and non-use of confidential information of the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
discloser; (viii) any Contract entered into since January 1, 2016 that relates to involving the sale, transfer or other disposition of a business or assets lease by the Company or of any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnificationtangible assets; (ix) involving a license, guarantee, “earnout” distributorship or other contingentsimilar arrangement; (x) involving any capital expenditure or leasehold improvements; (xi) that if terminated, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess a Company Material Adverse Effect; (xii) Contracts with any Affiliate or family member of Twenty-Five Million Dollars any of the Shareholders, or Affiliate or family member of any director, current or former partner, Shareholder, officer, employee, of the Company; and ($25,000,000);
(ixxiii) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between that are otherwise material to the Company or were entered into outside the ordinary course of business and any not previously disclosed pursuant to this Section 4.10. The Contracts required to be listed on Schedule 4.10(a) together with the Intellectual Property Contracts and Policies, are collectively referred to herein as the “Company Contracts”. The Company has delivered complete and accurate copies of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
each Company Contract (xincluding all amendments, modifications, extensions and renewals thereof and related notices and agreements thereto) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)to Buyer.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Each Company Contract is in full force and effect and valid and enforceable in accordance with respect to the its terms. The Company has complied with and the Company Subsidiaries, as the case may beis in compliance with, and to the Knowledge of the Company, the all other parties thereto have complied with and (iii) none are in compliance with, the provisions of the each Company or any Contract. The Company Subsidiary is (with or without notice or lapse of timenot, or both) in breach or default under any such Company Contract and, and to the Knowledge of the Company, no other party thereto is, in default in the performance, observance or fulfillment of any obligation, covenant, condition or other term contained in any Company Contract, and the Company has not given or received notice to or from any Person relating to any such Company Contract is (alleged or potential default that has not been cured. No event has occurred which with or without the giving of notice or lapse of time, or both) in breach , could violate, breach, conflict with or default thereunder. The Company has made available to Parent true and complete copies constitute a default, an event of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensionsdefault, or renewals with respect theretoan event creating any additional rights (including rights of amendment, impairment, modification, suspension, revocation, acceleration, termination, or cancellation), impose additional obligations or result in a loss of any rights, or require a consent or the delivery of notice, under any Company Contract.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Minerva Neurosciences, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 2.8 of the Company Disclosure Letter, Schedule contains a list as of the date hereof, neither of this Agreement of each of the following contracts to which the Company nor any or a Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract contract (x) required to be filed as an exhibit to any Company Report or listed in Section 3.15 Part 2.8 of the Company Disclosure LetterSchedule, (y) that is a “Company Contract”):
IP License, or (iz) any Contract required to be that is filed by the Company as a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Exchange Act) as an exhibit to the Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) each contract that has not been restricts in any material respect the ability of the Company, any Company Subsidiary or any Affiliate of any of them to compete in any geographic area or line of business, or solicit any client or customer (or that would so filedrestrict Parent, any Parent Subsidiary or any Affiliate following the Closing);
(b) each joint venture agreement or similar agreement with a third party;
(c) each contract (other than any Organizational Document) between the Company or any Company Subsidiary, on the one hand, and any director, officer or Affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Company Plan;
(d) each material acquisition or divestiture contract or material licensing agreement that contains any material indemnification obligations or any “earnout” or other material contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(e) each loan or credit agreement, indenture, mortgage, note or other contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, and each contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $10,000,000;
(f) each contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) 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, (ii) to make loans to the Company or any Company Subsidiary, or (iii) to grant liens on the property of the Company or any Company Subsidiary;
(g) each Contract contract that obligates the Company or any Company Subsidiary to make any loans, advances or capital contributions to, or investments in, any Person, except for (i) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (ii) extended payment terms for customers in the ordinary course of business, (iii) prepayment of Taxes for repatriated employees of the Company or any Company Subsidiary or (iv) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $10,000,000 individually;
(h) each contract that grants any right of first refusal or right of first offer or similar right with respect to any assets, rights or properties of the Company or any Company Subsidiary (i) for, or that would reasonably be expected to result in, total consideration of more than $10,000,000 or (ii) with a fair market value in excess of $10,000,000;
(i) each contract (excluding (i) purchase orders given or received in the ordinary course of business and (ii) contracts between the Company and any Subsidiary of the Company or among any Subsidiaries of the Company) under which the Company or any Company Subsidiary (A) paid in excess of $15,000,000 in fiscal year 2020, or is expected to pay in excess of $15,000,000 in fiscal year 2021 or (B) received in excess of $20,000,000 in fiscal year 2020, or is expected to receive in excess of $20,000,000 in fiscal year 2021;
(j) each material “single source” supply contract pursuant to which goods or materials are supplied to the Company or a Company Subsidiary from a sole source;
(k) each foundry agreement, each agreement relating to assembly and testing, and each agreement relating to manufacturing services;
(l) each collective bargaining or other labor or works council agreement covering employees of the Company or a Company Subsidiary;
(m) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a party that monthly base rental in excess of $350,000;
(an) restricts each lease or rental contract involving personal property (and not relating primarily to real property) pursuant to which the ability Company or any Company Subsidiary is required to make rental payments in excess of $250,000 per month (excluding leases or rental contracts for office equipment entered into in the ordinary course of business);
(o) each contract relating to the acquisition, sale or disposition of any business unit or product line of the Company or any Company Subsidiary to engage in or compete in and with any business in any manner outstanding obligations that is are material to the Company and the Company Subsidiaries, taken as a whole, as of the date of this Agreement;
(bp) any material Government Contract that has not been closed out;
(q) each contract with any “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any business Person on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholepreferential or exclusive basis, or (c) provides for “exclusivity,” rights of first refusal that includes a price protection or offer or any similar requirement or right rebate provision in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholecounterparty to such contract;
(iiir) each Contract to which the Company or any Company Subsidiary is settlement agreement entered into since January 1, 2018 (i) with a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services salesGovernmental Entity, (Bii) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make pay more than $15,000,000 after the date of this Agreement or (iii) that imposes any advancerestrictions, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than immaterial restrictions, on the business of the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viiis) each contract with any Contract entered into since January 1, 2016 that relates Top Customer or any Top Distributor or Top Supplier of the Company and its Subsidiaries; and
(t) each contract relating to the sale, transfer or other disposition creation of a business Lien (other than Company Permitted Encumbrances) with respect to any material asset of the Company or assets by any Company Subsidiary. There are no existing breaches or defaults on the part of the Company or any Company Subsidiary pursuant under any Material Contract, and, to which the Company knowledge of the Company, there are no existing breaches or defaults on the part of any Company Subsidiary has other Person under any continuing indemnificationMaterial Contract, guarantee, “earnout” in each case except where such breaches or other contingent, deferred or fixed payment obligations that defaults would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to constitute or result in a Company Material Adverse Effect. No event has occurred or not occurred through the Company’s or any Company Subsidiary’s action or inaction or, (i) to the knowledge of the Company, through the action or inaction of any third party, that, with notice or the lapse of time or both, would constitute a breach of or default under the terms of any Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably be expected to constitute or result in a Company Material Adverse Effect. Each Material Contract is a valid, binding and legally has not been terminated prior to the date of this Agreement, is enforceable obligation of against the Company or one of the applicable Company Subsidiaries, as the case may beSubsidiary that is a party to such Material Contract, and, to the Knowledge knowledge of the Company, of is enforceable against the other parties thereto, in each case subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in all respects to the Bankruptcy effect, affecting creditors’ rights generally; and Equity Exceptions, (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, and, in each such case, except as would not, individually or in the aggregate, reasonably be expected to constitute or result in a Company Material Adverse Effect. Prior to the date of this Agreement, the Company has made available to Parent accurate and complete copies of each Material Contract is in full force effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect with respect as of the date of this Agreement. Prior to the date of this Agreement, no Top Customer, no Top Distributor and no Top Supplier to the Company and or a Company Subsidiary has canceled, terminated or substantially curtailed its relationship with the Company Subsidiariesor any Company Subsidiary, as the case may be, and given written notice to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (of any intention to cancel, terminate or substantially curtail its relationship with the Company or without notice or lapse of timeany Company Subsidiary, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no other party threatened to do any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company ReportFor purposes of this Agreement, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any each of the following categories shall be deemed to constitute a “Material Contract”:
(i) any Company Contract that is required by the rules and regulations of Contracts (each such Contract required the SEC to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedSEC Documents;
(ii) any employment, management, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or expatriation Contract that is not terminable at will by the Company or one of its Subsidiaries, pursuant to which the Company or one of its Subsidiaries has continuing obligations of $200,000 or more per calendar year as of the date of this Agreement (other than those pursuant to which severance is required by Law);
(iii) any Company Contract in connection with which or pursuant to which the Company and the Company Subsidiaries are committed to spend, in the aggregate, more than $1,000,000 during the current fiscal year;
(iv) any Company Contract that generated more than $1,000,000 in revenues for the Company or any Company Subsidiary in the fiscal year ended December 31, 2014;
(v) any Company Contract relating to the acquisition, transfer, development or sharing of any material Intellectual Property rights (except for any Company Contract pursuant to which (A) any Intellectual Property rights are licensed to the Company or any Company Subsidiary under any third-party software license generally available to the public; or (B) any Intellectual Property rights are licensed by the Company to any Person on a non-exclusive basis);
(vi) any Contract (A) relating to a transaction involving the disposition or acquisition of (1) assets whose value, in each Contract case, is in excess of $2,500,000 or (2) any tangible assets constituting a material business or business line by the Company or any Company Subsidiary after the date of this Agreement, in each case other than in the ordinary course of business; or (B) pursuant to which the Company or any Company Subsidiary will acquire any material ownership interest in any other Person or other business enterprise other than any Company Subsidiary;
(vii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $5,000,000 other than (A) accounts receivables and payables in the ordinary course of business; (B) loans to any Company Subsidiary in the ordinary course of business; and (C) extensions of credit to customers in the ordinary course of business;
(viii) any Contract providing for the payment, increase or vesting of any benefits or compensation in connection with the Merger;
(ix) any Contract that is a party settlement agreement that imposes material obligations on the Company or any Company Subsidiary after the date of this Agreement;
(ax) restricts any Contract that involves a material joint venture, limited liability company or partnership with any third Person;
(xi) any Contract containing any covenant or other provision (A) limiting the ability right of the Company or any Company Subsidiary to engage in any material line of business or to compete with any Person in any line of business in any manner that is material to the Company; (B) prohibiting the Company or any Company Subsidiary from engaging in any business with any Person or levying a fine, charge or other payment for doing so; or (C) containing “most favored nation,” “exclusivity” or similar provisions, in each case other than any such Contracts that (1) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less; or (2) are not material to the Company and the Company its Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(xxii) each any Company Contract with a term exceeding one (1) year after the date which provides for indemnification of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the any Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Employee.
(b) Except Part 3.10(a) of the Disclosure Schedule lists all Material Contracts as would not have or would not reasonably be expected to have, individually or in of the aggregate, a Company Agreement Date. Each Material Adverse Effect, (i) each Company Contract is a valid, binding valid and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect effect, and is enforceable in accordance with respect its terms, subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies.
(c) To the Company’s Knowledge, as of the Agreement Date, neither the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or nor any Company Subsidiary party to, nor any other party to, any Material Contract, is (with or without notice or lapse of timein material breach of, or both) in breach or material default under under, any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as As of the date hereofof this Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of there are no Contracts that are material contracts (each such Contract required to be filed as an exhibit to any Company Report or listed defined in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under K) with respect to Public Company, other than those Contracts identified or described in the Securities Act that Public Company SEC Reports filed prior to the date hereof.
(b) Public Company has not been so filed;entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K other than as disclosed in an SEC Report filed prior to the date hereof.
(iic) each Contract to which the Neither Public Company or nor any Company Subsidiary of its Subsidiaries is a party that (a) restricts the ability to any agreement under which a third party would be entitled to receive a license or any other right to Public Company Intellectual Property as a result of the transactions contemplated by this Agreement.
(d) Section 4.11(d) of the Public Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to Disclosure Schedule lists the following Contracts of Public Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess effect as of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement Agreement:
(other than i) any Contract (or group of related Contracts) for the purchase or sale of products or for the furnishing or receipt of services (A) Contracts which calls for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with performance over a total consideration period of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after 180 days from the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration (B) which involves an aggregate of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries 50,000 or (C) contains a put, call, right of first refusal or similar right pursuant to in which the Public Company or any Company Subsidiary could be required of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or sell, as applicable, services or has agreed to purchase goods or services exclusively from a particular party;
(ii) any Contract under which the consequences of a default or termination would reasonably be likely to have a Public Company Material Adverse Effect;
(iii) any Contract that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of Merger Partner or any of its Subsidiaries or Public Company or any of its Subsidiaries as currently conducted;
(iv) any Contract under which Public Company or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the foregoingmarket or line of business;
(v) any dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement or outsourcing arrangement;
(vi) any Contract for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each case by or on behalf of Public Company or any of its Subsidiaries; and
(vii) any Contract that requires would entitle any third party to receive a license or any other right to Intellectual Property of Merger Partner or any of Merger Partner’s Affiliates following the Closing.
(e) Public Company has made available to Merger Partner a complete and accurate copy of each Contract listed in Sections 4.10(a), 4.10(h), 4.10(i) and 4.11(d) of the Public Company Disclosure Schedule. With respect to each Contract so listed and those Contracts identified or described in the Public Company SEC Reports filed prior to the date hereof: (i) the Contract is legal, valid, binding and enforceable and in full force and effect against Public Company and/or its Subsidiaries, as applicable, and, to the knowledge of Public Company, against each other party thereto, as applicable, subject to the Bankruptcy and Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against Public Company and/or its Subsidiaries, as applicable, and, to the knowledge of Public Company, against each other party thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms and not as a result of a breach or default by Public Company or any Company Subsidiary to make any advanceof its Subsidiaries), loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates each case subject to the sale, transfer or other disposition of a business or assets by Bankruptcy and Equity Exception and except to the Company or any Company Subsidiary pursuant extent the failure to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company full force and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to haveeffect, individually or in the aggregate, would not reasonably be likely to have a Public Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto ; and (iii) none of Public Company, its Subsidiaries nor, to the Company knowledge of Public Company, any other party, is in breach or violation of, or default under, any Company Subsidiary such Contract, and no event has occurred, is (pending or, to the knowledge of Public Company, is threatened, which, with or without notice or lapse of time, or both) in , would constitute a breach or default under any such Company Contract andby Public Company, its Subsidiaries or, to the Knowledge knowledge of the Public Company, no any other party under such Contract, except for such breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to any such have, a Public Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (SRAX, Inc.), Merger Agreement (Boston Therapeutics, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits to any the Filed Company ReportSEC Documents, or set forth in Section 3.15 3.11(a) of the Company Disclosure LetterLetter sets forth a correct and complete list, as of the date hereof, neither and the Company nor any Company Subsidiary is a party tohas made available to Parent correct and complete copies, and none of their respective properties or assets is bound by any of the following categories of all Contracts (including all material amendments, modifications, extensions or renewals with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with the terms of each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 with applicable Legal Requirements governing the sharing of the Company Disclosure Letter, a “Company Contract”):
(iinformation) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party as of the date of this Agreement (collectively, the “Company Contracts”):
(i) 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) of Regulation S-K promulgated by the SEC;
(ii) that (a) restricts contain a covenant restricting the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person or in any manner that is material geographic area;
(iii) with any Affiliate of the Company;
(iv) which primarily relates to (A) the granting to the Company and or any Company Subsidiary of any IP License in or to any Company Intellectual Property owned by a third party, with annual license fees of more than $50,000, or (B) the Company Subsidiaries, taken as a whole, (b) requires granting by the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts of any IP License in or to any material respect the business Company Intellectual Property, with annual license fees of the Company and the Company Subsidiariesmore than $25,000, taken as a wholeexcluding “click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or (c) provides the terms of use or service for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeweb site;
(iiiv) each Contract relating to any material joint venture, partnership or other similar arrangement involving co-investment, collaboration or partnering with a third party;
(vi) with a Governmental Entity (other than ordinary course Contracts with Governmental Entities as a customer);
(vii) pursuant to which any Indebtedness of the Company or any Company Subsidiary is a party that provides for payments to outstanding or from the Company may be incurred or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has guaranteed any continuing indemnification, guarantee, “earnout” Indebtedness of any other Person (other than the Company or other contingent, deferred or fixed payment obligations that would reasonably be expected to result any Company Subsidiary and excluding Company trade payables arising in aggregate payments in excess the ordinary course of Twenty-Five Million Dollars ($25,000,000business);
(ixviii) each Contract pursuant to which the Company, any Company Subsidiary or any other party thereto has continuing obligations, rights or interests relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with a term exceeding one (1) year after the date of this Agreement respect to, any product or product candidate for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between which the Company and or any of its whollyCompany Subsidiary is currently engaged in research or development, including manufacture or supply services or Contracts with contract research organizations for clinical trials-owned Subsidiaries or solely among its wholly owned Subsidiaries)related services; and
(xix) each Contract with a term exceeding one which are to any extent executory and relate to (1A) year after the date disposition or acquisition of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (any material assets or properties, other than Contracts solely between dispositions or acquisitions in the Company and ordinary course of business, or (B) any of its wholly-owned Subsidiaries merger or solely among its wholly owned Subsidiaries)other business combination transaction.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each Company Contract is a valid, valid and binding and legally enforceable obligation of on the Company or one of the and each Company Subsidiaries, as the case may be, Subsidiary which is party thereto and, to the Knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to effect, and the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any each Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default has performed all obligations required to be performed by it before the date hereof under any such each Company Contract and, to the Knowledge of the Company, no each other party to any each Company Contract has performed all obligations required to be performed by it before the date hereof under such Company Contract is Contract, except for such failures to be in compliance as would not, individually or in the aggregate, reasonably be expected to result in a material breach thereof.
(with or without notice or lapse of time, or bothc) in breach or default thereunder. The Company has made available not received or enjoyed any benefit, inducement or incentive from any Governmental Entity which will, as a result of this Agreement or the Transactions or the sale of the Real Estate or the cessation of the Company’s business operations in the geographic area where they are currently conducted or the termination of all or substantially all Company employees, result in any clawback, recapture, recoupment, repayment obligation, penalty, Tax or other such liability.
(d) The redacted provisions of the copy of the Merck Agreement which has been provided to Parent true for review in such redacted form do not include any term which would result in a material reduction of the benefits provided by the Merck Agreement to the Company or Parent from the terms in the unredacted provisions of the Merck Agreement and complete copies described in the Summary of each Company Contract (including, for Merck Financial Related Information furnished to Parent on the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Ligand Pharmaceuticals Inc), Merger Agreement (Neurogen Corp)
Contracts. (a) Section 3.12.1 Except for the Contracts contracts filed in unredacted form as exhibits to any the Company ReportSEC Filings, or set forth in Section 3.15 3.12 of the Company Disclosure Letter, Schedule sets forth a correct and complete list as of the date hereofof this Agreement, neither and the Company nor has made available to Parent correct and complete copies (including all material amendments, modifications, extensions or renewals, with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of information) of (collectively, the “Company Contracts”):
Section 3.12.1.1 any Company Subsidiary is a party to, agreement and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract amendment thereto required to be filed as an exhibit Exhibit to any Company Report or listed in Section 3.15 report of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under of the Securities Act that has not been so filedAct;
(ii) each Contract Section 3.12.1.2 all contracts to which the Company or any Company Subsidiary is a party that (a) restricts contain a covenant restricting the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries to compete in excess any business or with any person or in any geographic area;
Section 3.12.1.3 all contracts of Twenty-Five Million Dollars ($25,000,000) the Company or any of the Company Subsidiaries with any affiliate of the Company (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of Section 3.12.1.4 any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant contract to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
Company Subsidiaries is a party which primarily relates to (viiA) any Contract that requires the granting to the Company or any Company Subsidiary of license rights in or to make any advancematerial Company Intellectual Property owned by a third party, loan or commitment therefor or provide any credit support for (B) the granting by the Company or any capital contribution toCompany Subsidiary of license rights to a third party in or to any material Company Intellectual Property, in each of case (A) and (B) above, excluding “click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or the terms of use or service for any Web site;
Section 3.12.1.5 all joint venture, partnership or other similar agreements involving co-investment in, with a third party to which the Company or any Person of the Company Subsidiaries is a party;
Section 3.12.1.6 any contract with a Governmental Entity (other than ordinary course contracts with Governmental Entities as a customer) which imposes any material obligation or restriction on the Company or the Company Subsidiaries;
Section 3.12.1.7 all contracts pursuant to which any indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of the Company Subsidiaries of any indebtedness of any other person (other than the Company or any of the Company SubsidiarySubsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $500,000 on an annual basis and excluding trade payables arising in excess the ordinary course of Twenty-Five Million Dollars ($25,000,000business);
(viii) any Contract entered into since January 1Section 3.12.1.8 contracts with hospitals and medical groups that, 2016 that relates to in the saleaggregate, transfer or other disposition represent an amount of a business or assets claims repriced by the Company and the Company Subsidiaries of at least 50% of the total amount of projected 2004 claims repriced by the Company and the Company Subsidiaries to hospitals and medical groups;
Section 3.12.1.9 any customer contract (other than contracts with hospitals or other providers) that involves annual payments by the customer to the Company and the Company Subsidiaries of greater than $500,000;
Section 3.12.1.10 any contract with a vendor or supplier (other than contracts covered by Sections 3.12.1.4 or 3.12.1.8) that involves annual payments of greater than $500,000 by the Company and the Company Subsidiaries; and
Section 3.12.1.11 any contract with respect to any risk sharing or risk transfer arrangement or that provides for a retroactive premium or similar adjustment or withholding arrangement or any contract, agreement or policy for reinsurance.
Section 3.12.2 Except as set forth in the Company Disclosure Schedule, each Company Contract is valid and binding on the Company and each Company Subsidiary pursuant party thereto and, to which the Company’s knowledge, each other party thereto, and in full force and effect, and the Company or any and each Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment in all material respects performed all obligations that would reasonably required to be expected performed by it to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchaseshereof under each Company Contract and, exchange or sales of gasto the Company’s knowledge, oil or electric energy each other party to each Company Contract has in excess of Fifty Million Dollars ($50,000,000) in the aggregate after all material respects performed all obligations required to be performed by it to the date of this Agreement (other than Contracts solely between the hereof under such Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) Contract, except, in each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except case, as would not have or would not reasonably be expected to havehas not, individually or in the aggregate, resulted in a Company Material Adverse Effect, .
(i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none None of the Company or any of the Company Subsidiary is Subsidiaries (x) has received written notice that it is, or has knowledge that any other party to any Company Contract is, in violation or breach of or default (with or without notice or lapse of time, time or both) in breach under or default (y) since January 1, 2004 through the date hereof, has expressly waived any rights or benefits under any such Company Contract andContract, and (ii) to the Knowledge knowledge of the Company, there has occurred no other party event giving to others any such Company Contract is right of termination, amendment or cancellation of (with or without notice or lapse of time, time or both) any such Company Contract, except in each case for violations, breaches, defaults or waivers covered by clauses (i) or (ii) above that, individually or in the aggregate, have not had or would not reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2004 through the date hereof, except as set forth on the Company Disclosure Schedule, no counterparty to any Company Contract scheduled in response to Section 3.12.1.9 (each, a “Customer”) has given written notice of any intention to cancel or otherwise terminate, prior to the end of the applicable contract term, such Company Contract, and, to the Company’s knowledge, no Customer intends to terminate such Company Contract or otherwise materially reduce its usage or purchase of the products or services provided by the Company or any Company Subsidiary.
Section 3.12.4 Except as set forth in the Company Disclosure Schedule or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent or approval under, result in any breach of or any loss of any benefit under, or constitute a change of control or default thereunder. The Company has made available to Parent true and complete copies (or an event which with notice or lapse of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensionstime or both would become a default) under, or renewals with respect thereto)give to others any right of termination, amendment, acceleration or cancellation of, any Company Contract.
Appears in 2 contracts
Sources: Merger Agreement (First Health Group Corp), Merger Agreement (Coventry Health Care Inc)
Contracts. (a) Except as filed as an exhibit to a Company SEC Document prior to the date of this Agreement, and except for the Contracts filed as exhibits to any Company ReportBenefit Plans, each of the following contracts, agreements or arrangements are set forth in Section 3.15 3.18(a) of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”)::
(i) any Contract required agreement relating to be filed indebtedness (other than agreements among direct or indirect wholly owned Company Subsidiaries) in excess of $10 million;
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) exceeding $15 million individually or $30 million in the aggregate for a series of related agreements;
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business in which the Company is currently engaged including any covenant not to compete, or that could require the disposition of any material assets or line of business of the Company or any Company Subsidiary;
(v) any agreement providing for the production by the Company as a or any Company Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis, in each case not entered into in the ordinary course of business consistent with past practice;
(vi) any “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act SEC).
(vii) any agreement that has involves expenditures or receipts of the Company or any Company Subsidiary in excess of $10 million per year not been so filedentered into in the ordinary course of business consistent with past practice;
(iiviii) each Contract any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to use material Intellectual Property rights of any other Person (other than licenses for readily available commercial software) or by which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company restricted in its right to use or register, or licenses or otherwise permits any Company Subsidiary other Person to engage in use, enforce, or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in register any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;Owned Intellectual Property; or
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(viiix) any Contract that requires agreement the Company termination or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess breach of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after Material Adverse Effect on the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Company.
(b) The agreements, arrangements and plans that are required to be set forth in Section 3.18(a) of the Company Disclosure Letter, or that would be required to be set forth but for the filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “Company Contracts”. Except as would not have or would not reasonably be expected with respect to havematters that, individually or in the aggregate, have not resulted in and would not reasonably be expected to result in a material adverse effect on the business or operations of the Company Material Adverse Effectand its Subsidiaries, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation agreement of the Company or one of the a Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company SubsidiariesSubsidiary, as the case may be, and to the Knowledge is in full force and effect, and none of the Company, any Company Subsidiary or, to the knowledge of the Company, any other parties party thereto is in default or breach in any material respect under the terms of any such Company Contract; and (iii) none since January 1, 2009, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or relinquished any material benefit under any such Company Contract; and no event has occurred, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material default by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no any other party to any under such Company Contract is (with or without notice or lapse of timeContract. True, or both) in breach or default thereunder. The Company has made available to Parent true correct and complete copies of each such Company Contract (including, for the avoidance of doubt, including all material amendments, modifications, extensions, or renewals with respect thereto)modifications and amendments thereto and waivers thereunder) have been made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Terra Industries Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Reportthis Agreement, or set forth in Section 3.15 3.13(a) of the Company Disclosure LetterLetter sets forth a true and complete list, as of the date hereofof this Agreement, neither and the Company nor any Company Subsidiary is a party tohas made available to Parent true and complete copies, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (aA) materially restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person in any manner that is material to the Company and the Company Subsidiaries, taken as a wholegeographical area, (bB) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party, (C) grants a third party that restricts in development rights relating to any material respect the business of Company Product, (D) requires the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement Company Subsidiary to purchase a minimum quantity of goods or right supplies relating to any Company Product in favor of any third party that restricts or (E) provides for “exclusivity” or any similar requirement in favor of any material respect the business of the Company and the Company Subsidiaries, taken as a wholethird party;
(iii) each Contract with a Significant Customer or Significant Supplier;
(iv) other than any Company Benefit Plan, any Contract that can be terminated for convenience on notice by the Company, customer and channel partner agreements and software maintenance agreements entered into in the ordinary course of business, each Contract to which the Company or any Company Subsidiary is a party that provides for recurring annual minimum payments to or from the Company or any its Subsidiaries receipts in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)500,000;
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required is a party relating to purchase indebtedness for borrowed money or sell, as applicable, any of the foregoingfinancial guaranty;
(viivi) any each Contract that requires to which the Company or any Company Subsidiary to make is a party involving in excess of $500,000 that provides for the acquisition or disposition of any advance, loan or commitment therefor or provide any credit support for assets or any capital contribution tobusinesses (whether by merger, sale of stock, sale of assets or other investment inotherwise) that (A) has not yet been consummated or (B) has outstanding any purchase price adjustment, any Person (other than “earn-out”, material indemnification, payment or similar obligations on the part of the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viiivii) any each Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by which the Company or any Company Subsidiary is a party pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnoutearn-out” or other contingent, deferred or fixed similar contingent payment obligations (other than indemnification obligations provided for in the ordinary course of business), including (A) milestone or similar payments, 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, in each case that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars $250,000;
(viii) each Contract to which the Company or any Company Subsidiary is a party that obligates the Company or any Company Subsidiary to make any capital commitment, loan or capital expenditure in an amount in excess of $25,000,000)500,000;
(ix) each Contract with to which the Company or any Company Subsidiary is a term exceeding one (1) year after the date of this Agreement for future purchasesparty, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between with respect to any partnership that is wholly owned by the Company and or such Company Subsidiary, that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company or such Company Subsidiary has an obligation (contingent or otherwise) to make a material investment in or material extension of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andcredit to any Person;
(x) each Contract with a term exceeding one (1) year after Governmental Entity involving payments to the date of this Agreement which is a financial derivative interest rate hedge with a value Company in excess of Ten Million Dollars $750,000 during the 2021 fiscal year;
(xi) each sales agency, distribution, international or domestic sales representative, reseller or similar Contract involving payments to the Company or any Company Subsidiary in excess of $10,000,000500,000 during the 2021 fiscal year;
(xii) each Contract that creates or would create a Lien (other than Contracts solely between a Permitted Lien) on any material asset or property of the Company or any Company Subsidiary;
(xiii) each hedging, derivative or similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices), including the Capped Call Documentation;
(xiv) each Contract which provides for a loan or advance of its whollyany amount to any employee of the Company or any temporary agency employee, consultant or other independent contractor of the Company or any of the Company Subsidiaries, in each case, in excess of $100,000 individually, other than the ordinary course of business consistent with past practice;
(xv) each stockholders’, investors rights’, registration rights or similar Contract to which the Company or any Company Subsidiary is a party (excluding the Company Stock Plans and any Contracts governing Company Stock Options, Company RSUs, Company PSUs or participation in the Company ESPP);
(xvi) each lease, sublease, license or similar use and occupancy Contract (including any amendments, extensions and modifications thereto, each, a “Lease”) for annual rents in excess of $100,000 pursuant to which the Company or any Company Subsidiary leases, subleases or otherwise uses or occupies any real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Leased Real Property”);
(xvii) each Intellectual Property Agreement;
(xviii) each Contract with or binding upon the Company, any Company Subsidiary or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-owned Subsidiaries K under the Securities Act; and
(xix) each Contract providing for the employment, engagement, retention or solely among its wholly owned Subsidiariestermination of any Person on a full-time, part-time, material independent contractor, temporary or other basis or otherwise providing compensation or other benefits to any officer, director, employee or material independent contractor, other than Contracts terminable by the Company for any reason upon less than 90 days’ notice without incurring any liability (other than any Company Benefit Plan or as required by applicable Law). Each such Contract described in clauses (i) through (xix) above is referred to herein as a “Material Contract” and shall include in addition to any such Contract to which the Company or any Company Subsidiary is a party any of the foregoing Contracts to which any of the assets or properties of the Company or any Company Subsidiary are bound.
(b) Except Each of the Material Contracts is valid, binding and enforceable (except as would such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company or such Company Subsidiary, as the case may be, and, to the knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect as have not have or had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, . Except as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect would not be material to the Company and the Company Subsidiaries, taken as the case may bea whole, and to the Knowledge (i) there is no violation or breach of the Company, the other parties thereto and (iii) none of or default under any Material Contract by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or, to the knowledge of the Company, any other party thereto and (ii) neither the Company nor any Company Subsidiary has waived, failed to enforce or assigned any rights or benefits under any Material Contract. As of the date of this Agreement, no party to any such Company Material Contract is (with has given any written notice of termination or without notice cancellation of any Material Contract or lapse of time, that it intends to seek to terminate or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)cancel any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Vocera Communications, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.14(a) of the Company Disclosure Letter, Schedule sets forth a complete and accurate list of all contracts and agreements to which the Company or any of its Subsidiaries is a party as of the date hereof, neither of this Agreement (i) in connection with which or pursuant to which the Company nor and its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than $5,000,000 to any vendor for merchandise resold by the Company Subsidiary and its Subsidiaries, (ii) that is a party toservices agreement, equipment lease, logistics agreement, information technology agreement, agreement related to software or intellectual property license (other than any architectural or construction-related contract) in connection with which or pursuant to which the Company and none its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than $2,000,000 to any person, (iii) any pharmacy-related agreements, including, without limitation, procurement agreements, rebate agreements and network pharmacy service agreements, in connection with which or pursuant to which the Company and its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than $1,000,000 to any person, (iv) related to indebtedness for borrowed money owed by the Company or any of their respective properties its Subsidiaries having an outstanding amount in excess of $2,500,000 individually, other than any such indebtedness between or assets is bound by among any of the following categories Company and any of Contracts its Subsidiaries, (each such Contract required to be filed as an exhibit to v) that prohibits or otherwise restricts, in any Company Report or listed in Section 3.15 of material respect, the Company Disclosure Letteror any of its Subsidiaries from freely engaging in business anywhere in the world, a “Company Contract”):
(ivi) any Contract required to be filed by the Company as that is a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Securities Act that has not been so filed;
SEC (ii“Regulation S-K”)) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material with respect to the Company and the Company its Subsidiaries, taken as a whole, (bvii) requires the Company that is an employment or any Company Subsidiary to conduct any business on a “most favored nations” basis consulting agreement with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, executive officer or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money employee of the Company or any of its Subsidiaries or member of the Company Board earning an annual salary from the Company or any of its Subsidiaries in excess of Twenty-Five Million Dollars $100,000, (viii) that is a joint venture, partnership, limited liability company or other similar agreement or arrangement in which the Company or any of its Subsidiaries is still a member, partner or shareholder in connection with which the Company or any of its Subsidiaries has a recorded balance (on a GAAP basis) of more than $25,000,0001,000,000 or (ix) that involves the acquisition from another person or disposition to another person (other than Contracts for Indebtedness acquisitions or Indebtedness solely between the Company dispositions of inventory, merchandise, products, services, properties and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of other assets (other than in the ordinary course of business) ), of assets or capital stock or other securities equity interests for aggregate consideration under such contract (by merger, capital contribution or otherwise) series of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiaryrelated contracts) in excess of Twenty-Five Million Dollars $1,000,000, in the case of clauses ($25,000,000i) through (ix);
(viii) any Contract entered into since January 1, 2016 other than those that relates to the sale, transfer or other disposition of a business or assets are terminable by the Company or any Company Subsidiary pursuant of its Subsidiaries on no more than 30 days’ notice without material liability or financial obligation to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries(collectively, the “Company Material Contracts”); and
(x) . The Company has made available to Parent and Merger Sub a complete and accurate copy of each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Material Contract.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Each Company Material Adverse Effect, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation agreement of the Company or one of the Company its Subsidiaries, as the case may be, and, to the Knowledge knowledge of the Company, of the other parties any counterparty thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect except where the failure to be in full force and effect would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any other party to any Company and Material Contract is in violation of or in default under (nor does there exist any condition that, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company SubsidiariesMaterial Contract, as the case may bewhich violation or default would reasonably be expected to result in a Company Material Adverse Effect.
(c) Except for any conflicts, violations, breaches, defaults, terminations, cancellations, accelerations, losses, penalties or Liens, and for any consents or waivers not obtained, that would not reasonably be expected to the Knowledge of the Company, the other parties thereto and (iiihave a Company Material Adverse Effect or as set forth in Section 3.4(b) none of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the transactions contemplated by this Agreement shall not conflict with, or result in any Company Subsidiary is violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in breach control under, require the payment of a penalty under or default under result in the imposition of any such Company Contract andLien (other than a Permitted Lien) on the Company’s or any of its Subsidiary’s assets under, to the Knowledge any of the Companyterms, no other party conditions or provisions of any Company Material Contract.
(d) Neither the Company nor any of its Subsidiaries has entered into any transaction after November 30, 2011 that would be subject to any such disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)SEC Reports.
Appears in 2 contracts
Sources: Merger Agreement (Harris Teeter Supermarkets, Inc.), Merger Agreement (Kroger Co)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 5.19(a) of the Company Disclosure Letter, as of the date hereof, neither the Company nor Schedule and any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 filed between January 1, 2014 and the date hereof, as of the date hereof, none of the Company Disclosure Letter, or any of its Subsidiaries is a “Company Contract”):party to or bound by any:
(i) any Contract required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct;
(ii) Contract with respect to any partnership, joint venture, limited liability or similar arrangement or agreement relating to the formation, creation, operation, management or control of any partnership or joint venture with a third Person material to the Company or any of its Subsidiaries or in which the Company owns any interest valued at more than $25,000,000 without regard to percentage voting or economic interest;
(iii) Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale of any material business of the Company and its Subsidiaries, taken as a whole, or of any Subsidiary of the Company that is material to the Company and its subsidiaries, taken as a whole;
(iv) Contract (x) material to any line of business of, or material geographic region in which a material portion of the business of, the Company and its Subsidiaries, taken as a whole, is conducted or (y) that to the Knowledge of the Company as of the date hereof, would following the Effective Time, purport to bind Parent or any of its Subsidiaries (other than the Surviving Corporation and any of its Subsidiaries) in a way that would be material to the life science tools and performance materials businesses of Parent and its Subsidiaries, in the case of clauses (x) and (y), containing covenants of the Company or any of its Subsidiaries, in each case purporting to limit in any material respect any (A) line of business, (B) type of product or service, and channel of distribution, or field of commercial endeavor or (C) geographical area in which or with regard to which the Company, its Subsidiaries or, after the Effective Time, Parent or any Affiliate of Parent (including the Surviving Corporation and its Subsidiaries) may operate excluding, in each case, Contracts which limit the right of the Company and its Subsidiaries to use assets or properties of the counterparty to such Contract (or any Affiliate of such counterparty) and any license of Intellectual Property that purports to limit the scope of use thereof;
(v) Collective Bargaining Agreement (excluding agreements with terms set by applicable Law);
(vi) Contract pursuant to which the Company or any of its Subsidiaries has, or has guaranteed, any Indebtedness in an amount in excess of $50,000,000 outstanding (other than intercompany indebtedness);
(vii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party that (a) restricts for the ability of the Company direct or any Company Subsidiary to engage in indirect acquisition or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of disposition by the Company or any of the Company its Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creationproperties, formationassets, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities businesses (including by merger, capital contribution or otherwise) way of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell) for, as applicablein each case, any aggregate consideration of the foregoing;
(vii) any Contract that requires the Company more than $50,000,000, which has not yet been consummated or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary of its Subsidiaries has any continuing indemnificationmaterial warranty, guarantee, indemnity or “earnoutearn-out” obligations (or other contingentcurrent, deferred future or fixed payment obligations contingent material obligations), except in each case for acquisitions and dispositions of properties and assets in the ordinary course of business (including acquisitions of supplies and acquisitions and dispositions of inventory);
(viii) Contract containing any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another Person that may reasonably be expected to bind the Surviving Corporation or any of its Affiliates on or after March 31, 2015;
(ix) Contract (or series of related Contracts) with any agency or department of the United States federal government or other Governmental Entity, or other Government Contract, for the purchase of goods and/or services from the Company or any of its Subsidiaries which would reasonably be expected to result in aggregate payments to the Company or any of its Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000)25,000,000 in any fiscal year;
(ixx) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between that is material to the Company and its Subsidiaries, taken as a whole, that prohibits the payment of dividends or distributions in respect of the capital stock or other ownership interests of the Company or any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after , prohibits the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation pledging of the Company capital stock or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none ownership interests of the Company or any wholly-owned Subsidiary of the Company or prohibits the issuance of guarantees by any wholly-owned Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company;
(xi) Contract material to the business of the Company and its Subsidiaries, no other taken as a whole, and concerning Intellectual Property pursuant to which the Company or any of its Subsidiaries is a party or by which any of them or their assets are bound or otherwise benefits, including any Contract material to the business of the Company and its Subsidiaries, taken as a whole, under which (A) the Company or any of its Subsidiaries is granted any right, title or interest in or to any such Intellectual Property, (B) any Person is granted any right, title or interest in or to any Intellectual Property by the Company Contract is (with or without notice or lapse any of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract its Subsidiaries (including, in the case of clause (A) or (B), any license or any other right to use or otherwise exploit, any assignment of, any option, right of first or last refusal, or similar right in respect of, any royalty or revenue interest relating to, and any right to research, develop or manufacture, distribute, market, sell or otherwise commercialize any Intellectual Property related to any products of the Company or any of its Subsidiaries, and that is otherwise material to the business of the Company and its Subsidiaries, taken as a whole) or (C) the Company’s or any of its Subsidiaries’ use of any Intellectual Property owned by, or exclusively licensed to, the Company or any of its Subsidiaries is restricted (including by any coexistence agreement, settlement agreement, covenant not to ▇▇▇ or any other forbearance or restriction) (collectively, “IP Contracts”), provided, that the following IP Contracts shall not be required to be set forth in Section 5.19(a) of the Company Disclosure Schedule: (1) licenses for commercial “off-the-shelf” or “shrink-wrap” software that have not been modified or customized for the avoidance Company or any of doubtits Subsidiaries and that are not material to the conduct of the business of any member of the Company Group, all and (2) nondisclosure agreements, consulting agreements, materials transfer agreements or evaluation agreements that are not material amendmentsto any product or to the conduct of the business of a Company Group member;
(xii) Contract to which the Company or any of its Subsidiaries is a party that would reasonably be expected to require by its terms aggregate payments by any party thereto of more than $25,000,000 in any fiscal year after the date hereof, modificationsexcept for any such Contract that may be cancelled by the Company or any of its Subsidiaries, extensionswithout any material penalty or other liability to the Company or any of its Subsidiaries, upon notice of 90 days or renewals less; or
(xiii) Contract pursuant to which the Company or any of its Subsidiaries has made any loan to any Person that has an outstanding principal balance as of the date hereof of more than $15,000,000 (other than to the Company or any of its wholly owned Subsidiaries and other than extensions of trade credit in the ordinary course of business consistent with respect theretopast practice).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Sigma Aldrich Corp)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereofthis Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed;.
(b) Section 3.13(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies (including all amendments and supplements thereto), of each:
(i) agreement, Contract, understanding, or undertaking to which the Company or any of the Company Subsidiaries is a party that (A) restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area (B) could reasonably be expected to restrict the ability of Parent or any of its Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time, or (C) grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or the Company Subsidiaries,
(ii) each agreement or Contract that obligates the Company or any Company Subsidiary to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant,
(iii) (A) loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, hedging agreement or other similar agreement pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries, or (B) agreement, Contract, understanding or undertaking relating to the mortgaging, pledging or the placing of any Lien (other than Permitted Liens) on any material asset of the Company or any Company Subsidiary,
(iv) Partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture;
(v) agreement, Contract, understanding or undertaking with any Company Top Supplier,
(vi) Current Government Contract involving current annual payments to the Company or any Company Subsidiary in excess of $5,000,000,
(vii) Company Lease;
(viii) Judgment that provides for any material injunctive or other non-monetary relief after the date of this Agreement;
(ix) agreement, Contract, understanding or undertaking with any current or former officer, director or Affiliate of the Company or any Company Subsidiary 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),other than any Company Plan,
(x) (A) agreement, Contract, understanding or undertaking with respect to any material Intellectual Property Rights pursuant to which the Company or any Company Subsidiary is a party that licensee (a) restricts other than to “off-the-shelf” or “shrink wrap” licenses generally available to the ability public as of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (bClosing) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (cB) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract joint development agreement to which the Company or any Company Subsidiary is a party party,
(xi) agreement, Contract, understanding or undertaking relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any business or Person (whether by merger, purchase of equity interests or otherwise) or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is no ongoing liability or obligation of the Company or any Company Subsidiaries), and
(xii) agreement, Contract, understanding or undertaking not otherwise described above that provides for involves annual payments to or from the Company or any its Subsidiaries Company Subsidiary in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation 5,000,000 individually or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) 15,000,000 in the aggregate. Each agreement, (B) relates to the disposition (other than in the ordinary course of business) after the date of this AgreementContract, directly understanding or indirectly, of assets undertaking of the type described in this Section 3.13(b) and each Filed Company or the Contract is referred to herein as a “Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Material Contract”.
(bc) Except as would not have or would not reasonably be expected to havefor matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract (including, for purposes of this Section 3.13(c), any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject except, in all respects to each case, as enforcement may be limited by the Bankruptcy and Equity ExceptionsException, (ii) each such Company Material Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any of the Company Subsidiary Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The To the Knowledge of the Company, no event, circumstance or condition exists which, with or without notice or lapse of time or both, would reasonably be expected to result in a breach or default by the Company, any Company has made available to Parent true and complete copies Subsidiary or any other party thereto of each any Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 2.11 of the Company Disclosure Letter, Schedule contains a list as of the date hereof, neither of this Agreement of each of the following Contracts to which the Company nor any or a Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract (x) required to be listed in Part 2.11 of the Company Disclosure Schedule or (y) that is required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Exchange Act) as an exhibit to the Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) each Contract that has not been restricts in any material respect the ability of the Company, any Company Subsidiary or any Affiliate of any of them to (i) engage or compete in any geographic area or line of business, market or field, or to develop, sell, supply, manufacture, market, distribute, or support any material product or service, (ii) transact with any Person or (iii) solicit any client or customer (or that would so filedrestrict Parent, any Parent Subsidiary or any Affiliate of any of them following the Closing);
(iib) each joint venture agreement, partnership agreement or similar agreement with a third party;
(c) each material acquisition or divestiture Contract that contains any material indemnification obligations or any material “earnout” or other material contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(d) each Contract (other than any Organizational Document) between the Company or any Company Subsidiary, on the one hand, and any director, officer or Affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Company Plan;
(e) each Contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, and each Contract pursuant to which any such indebtedness for borrowed money is a party that guaranteed by the Company or any Company Subsidiary, in each case in excess of $500,000;
(af) restricts each Contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) to engage make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or compete in other equity interests, as the case may be, (ii) to pledge their capital stock or other equity interests, (iii) to issue any business in any manner that is material guaranty, (iv) to make loans to the Company and or any Company Subsidiary, or (v) to grant Liens on the property of the Company Subsidiaries, taken as a whole, or any Company Subsidiary;
(bg) requires each Contract that obligates the Company or any Company Subsidiary to conduct make any business on a “most favored nations” basis with loans, advances or capital contributions to, or investments in, any third party that restricts Person in any material respect the business excess of $500,000 individually, except for prepayment of Taxes for repatriated employees of the Company and the or any Company Subsidiaries, taken as a whole, or Subsidiary;
(ch) provides for “exclusivity,” rights each Contract that grants any right of first refusal refusal, first notice, first negotiation or right of first offer or any similar requirement or right in favor of any third party that restricts in with respect to any material respect the business assets, rights or properties of the Company and the Company Subsidiaries, taken as a whole;
(iiii) each Contract or series of related Contracts (excluding (i) purchase orders given or received in the ordinary course of business consistent with past practice, (ii) any Contract for sales of Company Products of up to $2,000,000 and (iii) Contracts between the Company and any wholly owned Company Subsidiary or among any wholly owned Company Subsidiaries) under which the Company or any Company Subsidiary (A) paid in excess of $2,000,000 in fiscal year 2020, or is expected to pay in excess of $2,000,000 in fiscal year 2021 or (B) received in excess of $2,000,000 in fiscal year 2020, or is expected to receive in excess of $2,000,000 in fiscal year 2021;
(j) each material “single source” supply Contract pursuant to which goods or materials are required to be supplied to the Company or a Company Subsidiary from a sole source;
(k) each material Contract containing any “take or pay,” minimum commitments or similar provisions (other than bandwidth purchase Contracts with fixed term and pricing in the ordinary course of business consistent with past practice);
(l) each collective bargaining or other labor or works council agreement covering employees of the Company or a Company Subsidiary;
(m) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a party that provides for payments to or from the Company or any its Subsidiaries monthly base rental in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)30,000;
(ivn) each principal lease or rental Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars involving personal property ($25,000,000and not relating primarily to real property) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be is required to purchase make rental payments in excess of $30,000 per month (excluding leases or sell, as applicable, any rental Contracts for vehicles or office equipment entered into in the ordinary course of the foregoingbusiness);
(viio) each Contract relating to the acquisition, sale or disposition of any business unit or product line of the Company or any Company Subsidiary and with any outstanding obligations that are material to the Company and the Company Subsidiaries, taken as a whole, as of the date of this Agreement;
(p) each Contract (i) between the Company or any Company Subsidiary and any Governmental Entity or (ii) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Entity (excluding, in each case, Contracts in the ordinary course of business consistent with past practice with (i) national oil companies or any prime contractors thereof or (ii) government-owned telecommunications providers);
(q) each material Contract with any “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any Person on a preferential or exclusive basis, or that includes a price protection or rebate provision in favor of the counterparty to such Contract;
(r) each settlement agreement, consent decree, commitment letter, or similar arrangement entered into with a Governmental Entity that imposes material ongoing obligations or restrictions on the Company or any Company Subsidiary;
(s) each settlement agreement (i) that requires the Company or any Company Subsidiary to make pay more than $500,000 after the date of this Agreement or (ii) that imposes any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than material restrictions on the business of the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viiit) each Contract (excluding purchase, work or similar orders pursuant to master service or similar Contracts) with any Top Customer or Top Supplier of the Company and its Subsidiaries;
(u) each Contract entered into since January 1, 2016 that relates relating to the sale, transfer or other disposition creation of a business Lien (other than Company Permitted Encumbrances) with respect to any Governmental Authorization or assets material asset of the Company or any Company Subsidiary; and
(v) (i) each employment Contract or consulting Contract that (A) is not terminable at will or for convenience by the Company on thirty (30) days’ or less notice and (B) obligates the Company or any Company Subsidiary pursuant to which make payments or provide compensation in excess of $250,000 annually; and (ii) any Contract relating to any retention, change in control or transaction bonus or severance or other termination obligation to any current or former employee, individual, consultant, officer or director of the Company or any Company Subsidiary, in each case other than Company Equity Plans. There are no existing breaches or defaults on the part of the Company or any Company Subsidiary under any Material Contract, and, to the knowledge of the Company, there are no existing breaches or defaults on the part of any other Person under any Material Contract, in each case except where, individually or in the aggregate, such breaches or defaults would not reasonably be expected to constitute or result in a Company Material Adverse Effect. No event has occurred or not occurred through the Company’s or any Company Subsidiary’s action or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that, with notice or the lapse of time or both, would constitute a breach of or default under the terms of any Material Contract, in each case except where, individually or in the aggregate, such breaches or defaults would not reasonably be expected to constitute or result in a Company Material Adverse Effect. Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable against the Company or the applicable Company Subsidiary that is a party to such Material Contract, and, to the knowledge of the Company, is enforceable against the other parties thereto, in each case subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, and, in each case, except as, individually or in the aggregate, would not reasonably be expected to constitute or result in a Company Material Adverse Effect. To the knowledge of the Company, none of the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract outstanding dispute with a term exceeding one (1) year after the date of this Agreement for future purchasesTop Customer or Top Supplier, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) other than disputes arising in the aggregate after the date ordinary course of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would business that are not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, material to the Knowledge business of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, taken as the case may be, and a whole. Prior to the Knowledge date of this Agreement, the Company has made available to Parent correct and complete copies of each Material Contract in effect as of the Companydate of this Agreement, together with all material amendments and supplements thereto in effect as of the other parties thereto and (iii) none date of this Agreement. Prior to the date of this Agreement, no Top Customer or Top Supplier to the Company or a Company Subsidiary has canceled, terminated or substantially curtailed its relationship with the Company or any Company Subsidiary, given written notice to the Company or any Company Subsidiary is (of any intention to cancel, terminate or substantially curtail its relationship with the Company or without notice or lapse of timeany Company Subsidiary, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no other party threatened to do any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)foregoing.
Appears in 2 contracts
Sources: Merger Agreement (RigNet, Inc.), Merger Agreement (Viasat Inc)
Contracts. (ai) Section 3.15(a) of the Photomedex Technology Disclosure Schedule sets forth an accurate list of the following Contracts to which the Company engaged in the Company Business is a Party or by which the Company is bound that is primarily used in, or otherwise necessary for, the operation of the Company Business (collectively, the “Company Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by the Company engaged in the Company Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to the Company engaged in the Company Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Company Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of the Company, including, but not limited to, any exclusivity covenants, or limit the freedom of the Company to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by the Company, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Company Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.15(b) of the Company Photomedex Technology Disclosure LetterSchedule, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 all of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Business Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is are in full force and effect and are enforceable in accordance with respect their terms except to the Company and the Company Subsidiariesextent that such enforceability (i) may be limited by bankruptcy, as the case may beinsolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to the Knowledge general principles of the Company, the other parties thereto and equity.
(iii) none Except as set forth in Section 3.15(c) of the Photomedex Technology Disclosure Schedule, as of the date hereof, the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) not in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any such Company material respect of or default under) any Business Contract andnor, to the Knowledge of the CompanyPHMD’s Knowledge, no is any other party Party to any such Company Business Contract is (with or without notice or lapse of time, or both) in breach in any material respect of or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)under such Business Contract.
Appears in 2 contracts
Sources: Merger Agreement (Photomedex Inc), Merger Agreement (Ds Healthcare Group, Inc.)
Contracts. (a) Except (i) for this Agreement, (ii) for the Contracts filed as exhibits to any the Company ReportSEC Documents filed prior to the date of this Agreement (a “Filed Company Contract”) and (iii) for the Company Benefit Plans and Company Leases, or set forth in Section 3.15 4.14 of the Company Disclosure LetterLetter sets forth, as of the date hereofof this Agreement, neither a true and complete list of the following Contracts to which the Company nor or any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):party:
(i) any Contract required to be filed by the Company as a each “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct);
(ii) each Contract agreement, Contract, understanding, or undertaking to which the Company or any of the Company Subsidiary Subsidiaries is a party that (a) restricts in any material respect the ability of the Company or any of the Company Subsidiary Subsidiaries to engage in or compete in any business or with any Person in any manner that geographical area, except if terminable by the Company or any Company Subsidiary on no more than 90 days’ notice without penalty;
(iii) each loan and credit agreement, debenture, bond, indenture, mortgage, security agreement, or other similar Contract, including each promissory note not issued pursuant to the Company’s existing revolving credit facility, relating to Indebtedness of the Company or any of the Company Subsidiaries with an aggregate outstanding principal and interest amount in excess of $1,000,000 individually, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries;
(iv) each partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries;
(bv) requires each Contract with (x) any member of the Company Board or (y) any Section 16 officer of the Company, in each case other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents or Contracts terminable by the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and Subsidiaries on no more than 30 days’ notice without liability or financial obligation to the Company or any of the Company Subsidiaries;
(vi) each agreement, taken as a wholeContract, understanding or (c) provides for “exclusivity,” rights of first refusal undertaking relating to the disposition or offer acquisition by the Company or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and Subsidiaries of any business or any amount of assets for consideration in excess of $1,000,000, with obligations remaining to be performed or liabilities continuing after the Company Subsidiaries, taken as a wholedate of this Agreement;
(iiivii) each Contract material hedge, collar, option, forward purchasing, swap, derivative, or similar Contract;
(viii) each agreement, Contract, understanding or undertaking (A) pursuant to which the Company or any Company Subsidiary is a party that provides for payments to or from of the Company Subsidiaries is granting or being granted any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement material Intellectual Property License (other than (A) the Company’s or the Company Subsidiaries’ standard customer Contracts or standard license Contracts for transportation “off the shelf” generally available Software or storage of gas, transportation of coal, transmission of electric energy, capacity software-as a service platforms or ancillary standard Contracts for information technology services sales, that include non-exclusive Software or Technology licenses); (B) Contracts for future purchases, exchange that materially limits or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money restricts the right of the Company or any of the Company Subsidiaries in excess to enforce, transfer, license, register or practice any right under any of Twentythe material Company-Five Million Dollars ($25,000,000) Owned Intellectual Property Rights (other than Contracts for Indebtedness the Company’s or Indebtedness solely between the Company and Subsidiaries’ standard customer Contracts); or (C) that contains an agreement for the Company or any of its wholly-owned the Company Subsidiaries to indemnify any other Person against any claim of infringement, unauthorized use, misappropriation, dilution or between the wholly-owned Company Subsidiaries);
violation of Intellectual Property Rights (v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than except for customer Contracts entered into in the ordinary course of businessbusiness or standard license Contracts for “off the shelf” generally available Software or software-as-a-service platforms) or capital stock standard Contracts for information technology services that include non-exclusive Software or other securities Technology licenses;
(by mergerix) any agreements, capital contribution understandings or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal arrangements granting “most favored nations” or similar right terms to another Person and pursuant to which such Contract the Company or any Company Subsidiary could be required to purchase or sellreceived during the period ended December 31, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other 2015 more than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)1,000,000; and
(x) each any Company Government Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between annual aggregate payments to the Company and any the Company Subsidiaries under such master agreement for at least $5,000,000. Each agreement, Contract, understanding or undertaking of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)the type described in this Section 4.14(a) and each Filed Company Contract is referred to herein as a “Material Contract.” The Company has made available to Parent true, correct and complete copies of all Material Contracts.
(b) Except as would not have or would not reasonably be expected to havefor matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andexcept, to the Knowledge in each case, as enforcement may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptionsequity, (ii) each such Company Material Contract is in full force and effect with respect to the Company and the Company Subsidiarieseffect, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any of the Company Subsidiary Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder.
(c) Except to the extent permitted by Section 5.01(b)(viii) and for any Filed Company Contracts, neither the Company nor any of the Company Subsidiaries are parties to or bound by any loan agreement, credit agreement, note, debenture, bond, indenture, mortgage, security agreement, pledge, capital or financing method leases or other similar agreement that prevents or restricts the Company, any Company Subsidiary or any direct or indirect Subsidiary thereof from (i) paying dividends or distributions to the Person or Persons who owns such entity, (ii) incurring or guaranteeing Indebtedness or (iii) creating Liens that secure Indebtedness.
(d) Within the past six years, neither the Company nor any of the Company Subsidiaries has (i) breached or violated in any material respect any Law, certification, representation, clause, provision or requirement pertaining to any Company Government Contract; (ii) been suspended or debarred from bidding on government contracts by a Governmental Entity; (iii) been audited or investigated by any Governmental Entity with respect to any Company Government Contract; (iv) conducted or initiated any internal investigation or made any disclosure, nor has any Governmental Entity made any finding, with respect to any alleged or potential material irregularity, misstatement, omission or overpayment arising under or relating to a Company Government Contract; (v) received from any Governmental Entity or any other Person any written notice of any material breach, cure, set-off, show cause or default with respect to any Company Government Contract; (vi) had any Company Government Contract terminated by any Governmental Entity or any other Person for default or failure to perform; or (vii) violated any laws regarding post-employment conflicts of interest for federal officials. To the Knowledge of the Company, all claims submitted by the Company or any Company Subsidiary within the past six years pursuant to a Company Government Contract were current, accurate and complete in all material respects as of their effective date. To the Knowledge of the Company, each Company Government Contract has been legally awarded, is binding on the parties thereto, and is in full force and effect in accordance with its terms. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, complied in all material amendmentsrespects with all Laws, modifications, extensions, regulations and other governmental policies related to any Company or renewals with respect thereto)Company Subsidiary facility security clearance or personnel security clearance.
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Contracts. (a) Except for this Agreement and, as applicable, the Contracts filed Restructuring Agreements and the agreements contemplated thereby, any Contract or Company Plan listed in Item 15 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2012, any Contract attached as exhibits an exhibit to any SEC filing by the Company Reportbetween January 1, 2013 and the date hereof, and any Contract or Company Plan set forth in on Section 3.15 3.17(a) of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):date hereof:
(i) any Contract required to be filed by the or Company as Plan which is a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Securities Act that has not been so filedSEC);
(ii) each any Contract to which that is for network affiliation with any of the Company ABC, CBS, FOX, NBC, CW or MNTV (also known as MyNetworkTV or MDS) television networks or any other national television network (including, but not limited to, any Contract relating to the sharing of retransmission revenue);
(iii) any Contract or Company Subsidiary is a party Plan that (a) restricts includes any exclusive dealing arrangement or any arrangement that grants any material right of first refusal, right of first offer, preemptive right or similar right or that limits or purports to limit in any material respect the ability of the Company or any Company Subsidiary (or that, following the consummation of the Merger, would materially restrict the ability of the Surviving Corporation or its Affiliates) to engage in own, operate, sell, transfer, pledge or compete otherwise dispose of any material assets or participate in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)business;
(iv) each principal any Contract creatingfor the acquisition, guaranteeing sale, lease or securing Indebtedness for borrowed money license of the Company properties or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration value in excess of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities 750,000 (by merger, capital contribution purchase or sale of assets or stock or otherwise) of the Company entered into since January 1, 2013;
(v) any Contract for any acquisition or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right disposition pursuant to which the Company or any Company Subsidiary could is subject to continuing indemnification or earn-out obligations (whether related to environmental matters or otherwise), in each case, that would reasonably be required likely to purchase result in payments by the Company or sell, as applicable, any Company Subsidiary in excess of the foregoing$1,000,000;
(vi) any Collective Bargaining Agreement;
(vii) any Contract that requires is a “local marketing agreement” or time brokerage agreement, joint sales agreement, shared services agreement, management services agreement, local news sharing agreement or similar Contract;
(viii) any Contract relating to Program Rights that involves cash payments or cash receipts of $250,000 or more over the remaining term of such Contract;
(ix) any retransmission consent or copyright indemnification Contracts with any MVPDs that have more than twenty-five thousand (25,000) subscribers with respect to any Station;
(x) any Contract or Company Plan with on-air talent or employees or consultants to the Company or any Company Subsidiary to make that involves a commitment for annual consideration with a value in excess of $200,000;
(xi) any advanceemployment or similar Contract or Company Plan providing for compensation, loan severance or commitment therefor or provide a fixed term of employment in respect of services performed by any credit support for employee of the Company or any Company Subsidiary with a value in excess of $150,000 per annum or $250,000 in the aggregate with respect to any individual employee;
(xii) any partnership, limited liability company or joint venture agreement where the Company or any Company Subsidiary, directly or indirectly, owns an equity interest in the partnership, limited liability company or joint venture;
(xiii) any Contract for capital expenditures in excess of $250,000 for any single item and $500,000 for any project consisting of multiple items;
(xiv) any Real Property Lease or Lessor Agreement;
(xv) any Contract relating to Indebtedness or under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than in the Company or any wholly-owned Company Subsidiary and other than (A) extensions of credit in the Ordinary Course of Business, (B) investments in marketable securities in the Ordinary Course of Business, and (C) any such Contract pursuant to which there are no outstanding obligations);
(xvi) any Contract (other than any Contract of the type described in clauses (i) through (xv) above) that (A) involves the payment or potential payment by or to the Company or any Company Subsidiary of more than $1,000,000 per annum or $1,500,000 in the aggregate (other than payments to the Company or any Company Subsidiary for advertising) or (B) cannot be terminated within twelve (12) months after giving notice of termination and without resulting in any material cost, penalty or liability to the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any . Each Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant Plan to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result is a party of the type described in aggregate payments in excess of Twenty-Five Million Dollars clauses ($25,000,000);
i) through (ixxvi) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy Section 3.17(a) is referred to in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with as a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)“Material Contract.”
(b) The Company has delivered or made available to Gannett true, correct and complete copies of each Material Contract and all amendments, modifications and side letters with respect thereto entered into prior to the date hereof. Except to the extent that it has previously expired in accordance with its terms, each Material Contract is valid and in full force and effect in all material respects, and is enforceable against the Company or any Company Subsidiary party thereto (and to the Knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general applicability relating to or affecting creditors’ rights generally, or by general principles of equity.
(c) Except as would not have or would not reasonably be expected to havehas not, individually or in the aggregate, had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of neither the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or nor any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party is, in breach or violation of, or in default under, any Material Contract and (ii) to the Knowledge of the Company, no event has occurred which would result in a breach or violation of, or a default under, any such Company Material Contract is (in each case, with or without notice or lapse of time, time or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (Gannett Co Inc /De/), Merger Agreement (Belo Corp)
Contracts. (a) Except for as set forth on Section 3.11 of the Contracts filed as exhibits Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Company ReportContract listed therein and (ii) shall not include Contracts that are invoices, statements of work or set forth in Section 3.15 purchase orders entered into pursuant to the terms of the Company Disclosure Letterother Contracts listed therein), as of the date hereof, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required that are Related to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):Business:
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedwith any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) each any collective bargaining agreement or similar Contract to which the Company with an employee representative or labor group representing any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeBusiness Employees;
(iii) each any Contract relating to which the Company Indebtedness or any Company Subsidiary is to mortgaging, pledging or otherwise placing a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement Lien (other than (Aa Permitted Lien) Contracts for transportation on any of the Transferred Assets or storage letter of gascredit arrangements, transportation of coalsurety or performance bonds, transmission of electric energyguarantee, capacity support or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)similar arrangements;
(iv) each principal any (A) Contract creating(or group of related Contracts) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, guaranteeing off-the-shelf Software with a replacement cost or securing Indebtedness an annual license fee of less than $50,000 in the aggregate or for borrowed money which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries from competing or otherwise freely engaging in the Business as currently conducted anywhere in the world in any material respect or that otherwise restricts any activities of the Company or any of the Company its Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of Business as currently conducted in any material partnerships, joint ventures or joint ownership arrangements with third partiesrespect;
(vi) any Contract for the sale of Products or services, in each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by mergercase, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twentycontaining “most-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate favored nation” pricing terms or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company exclusive dealing arrangement or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing“requirements” Contract;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)Shared Contract;
(viii) any Contract entered into since January 1with any Material Customer or Material Supplier (excluding ordinary course task orders or service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), 2016 that relates to and any other Contract which involves the salepayment by or to, transfer performance of services by or other disposition for, or the delivery of a business goods by or assets by to, or capital expenditures by, the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars $750,000 in the aggregate over the shorter of: ($25,000,000)A) the term of such Contract or (B) the 2019 calendar year;
(ixA) each any Contract with a term exceeding one relating to ownership of or investments in any business or enterprise and (1B) year after the date of this Agreement for future purchasespartnership, exchange joint venture, co-owner, limited liability company collaboration or sales of gas, oil strategic alliance or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)similar Contract; and
(x) each any Contract with involving a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Governmental Entity.
(b) Except as would not have Each Assumed Contract and each Contract disclosed or would not reasonably required to be expected to have, individually or in disclosed on Section 3.11 of the aggregate, a Company Material Adverse Effect, (i) each Company Contract Disclosure Schedule is a validlegal, valid and binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may beCompany, and, to the Knowledge of the Company, of the each other parties thereto, subject in all respects party to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may beContract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in accordance with its terms subject, in each case, to the other parties thereto effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (iii) none regardless of whether such enforceability is considered in a proceeding in equity or at law), and neither the Company nor, to the Knowledge of the Company Company, any other party to such Contract is in material default or material breach of such Contract, and, to the Knowledge of the Company, there does not exist any Company Subsidiary is event, condition or omission that would constitute such a material default or material breach (with or without notice or whether by lapse of time, time or notice or both) in breach or default under any such Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of the Disclosure Schedule and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available intends to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)provide any such notice.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Harsco Corp), Asset Purchase Agreement (Chart Industries Inc)
Contracts. (a) Except for As of the Contracts filed as exhibits to any Company Reportdate of this Agreement, or set forth in Section 3.15 none of the Company Disclosure Letter, as of the date hereof, neither the Company nor or any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Except for Filed Company SEC Documents (including, solely for this purpose, any exhibits or schedules incorporated by reference therein) (other than in the case of Section 4.13(b)(i) below), Section 4.13(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to the Buyer Parties prior to the date of this Agreement true and complete copies, of:
(i) each Contract to which the Company or any of the Company Subsidiaries is a party that restricts in any material respect the ability of the Company or any Company Subsidiaries to compete in any line of business, product, service or geographic area;
(ii) each Contract (A) pursuant to which any material amount of Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries (B) that grants a Lien, other than a Permitted Lien, on any material property or assets of the Company or any Company Subsidiary, (C) that restricts the granting of Liens on any material property or asset of the Company or any Company Subsidiary or the incurrence or guaranteeing of any Indebtedness, (D) that provides for or relates to any interest, currency or hedging, derivatives or similar arrangements or (E) that restricts payment of dividends or any distributions in respect of the equity interests of the Company or any Company Subsidiary;
(iii) each partnership, limited liability company, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the ordinary course of business;
(iv) each Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, any (A) executive, officer or director of either the Company or any of the Company Subsidiaries or any person that has served as such an executive, officer or director within the last five (5) years or any of such officer’s or director’s immediate family members, (B) record or beneficial owner of more than 5% of the Shares outstanding as of the date of this Agreement or (C) to the Knowledge of the Company, any affiliate of any such officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits to any Filed Company SEC Documents;
(v) each Contract (or group of related Contracts) relating to the disposition or acquisition by the Company or any of the Company Subsidiaries, with obligations remaining to be performed or liabilities continuing after the date of this Agreement or that was entered into on or after January 1, 2012, of any business or any assets for consideration of at least $2 million;
(vi) any Contract (or group of related Contracts) (A) for the use or licensing of material Intellectual Property Rights granted by the Company or any Company Subsidiary to any Person and/or (B) for the use of licensing of material Intellectual Property Rights granted by any Person to the Company or any Company Subsidiary;
(vii) each material hedge, collar, option, forward purchasing, swap, derivative, or similar Contract, in each case, other than any such Contract entered into in the ordinary course of business;
(viii) each Contract (or group of related Contracts) containing any “standstill” provisions or provisions of similar effect to which the Company or any of the Company Subsidiaries is a party or of which the Company or any of the Company Subsidiaries is a beneficiary;
(ix) each contract relating to a Company Affiliate Transaction;
(x) each Contract (or group of related Contracts) to which the Company or any Company Subsidiary is a party that (a) restricts involved aggregate payments during calendar year 2014 or could reasonably be expected to involve aggregate payments during any subsequent twelve-month period of at least $1 million; provided that the ability of the Company or any Company Subsidiary following Contracts shall not be required to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business be listed on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwiseSection 4.13(b) of the Company or the Company Subsidiaries or (C) contains a putDisclosure Letter, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could shall not be required to purchase made available to the Buyer Parties pursuant to this Section 4.13(b), and shall not be deemed a “Material Contract” for any purposes hereunder (whether or sell, as applicable, not a Filed Company Contract): (1) any of the foregoing;
Company Benefit Plan and (vii2) any Contract that requires between the Company, on the one hand, and one or more wholly owned Company or any Company Subsidiary to make any advanceSubsidiaries, loan or commitment therefor or provide any credit support for or any capital contribution toon the other hand, or other investment in, between one or more Company Subsidiaries (any Person (other than the Company or any Company Subsidiary) such Contract in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one clauses (1) year after the date of this Agreement for future purchasesand (2), exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiariesan “Excluded Contract”); and
(xxi) each Assumed Contract. Each Contract with a term exceeding one (1described in this Section 4.13(b) year after the date of this Agreement which is a financial derivative interest rate hedge with a value and each Filed Company Contract, in excess of Ten Million Dollars ($10,000,000) (each case, other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Excluded Contract, is referred to herein as a “Material Contract.”
(bc) Except as would not have or would not reasonably be expected to havefor matters which, individually or in the aggregate, have not had a Company Material Adverse Effect, (i) each Company Material Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject except, in all respects to the Bankruptcy each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and Equity Exceptionsby general principles of equity, (ii) each such Company Material Contract is in full force and effect with respect to the Company and the Company Subsidiarieseffect, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any of the Company Subsidiary Subsidiaries is (with or without notice or lapse of time, or both) in breach breach, subject to a target amortization event, subject to a facility early amortization event or in default (or has received any notice alleging any such breach, event or default) under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and no event of default, facility early amortization event or target amortization event (if applicable) has occurred and is continuing thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 2 contracts
Sources: Share and Asset Purchase Agreement (Home Loan Servicing Solutions, Ltd.), Share and Asset Purchase Agreement (New Residential Investment Corp.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set Set forth in Section 3.15 4.10 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Schedule is a party to, and none list of their respective properties or assets is bound by any of the following categories of all Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of or by which the Company or any Company Subsidiary is bound:
(i) which, as of the date hereof, is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) with respect to engage in (i) any joint venture or compete in any business in any manner partnership arrangements that is are material to the Company and the Company Subsidiaries, taken as a whole, or (bii) requires the Company or purchase of any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts Equity Interest in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeother entity;
(iii) each Contract pursuant to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness indebtedness for borrowed money of the Company or any of the Company Subsidiaries Subsidiary in an aggregate principal amount in excess of Twenty-Five Million Dollars ($25,000,000) (1,000,000 is outstanding or may be incurred, other than Contracts for Indebtedness any Contract between or Indebtedness solely between among the Company and any of its wholly-owned Company Subsidiaries or between the and/or wholly-owned Company Subsidiaries);
(iv) relating to a guarantee by the Company or any Company Subsidiary of indebtedness of any Third Party in excess of $1,000,000;
(v) each material Contract with respect relating to any pending acquisition or disposition by the creationCompany or any of the Company Subsidiaries of properties or assets, formationexcept for acquisitions and dispositions of properties, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than and inventory in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(viivi) any Contract that requires which contains covenants limiting the ability of the Company or any Company Subsidiary to make engage in any advance, loan or commitment therefor or provide any credit support for or any capital contribution toof its principal lines of business, or other investment in, to compete with any Person (other than the Company or operate at any Company Subsidiary) in excess geographic location with respect to any of Twenty-Five Million Dollars ($25,000,000)its principal lines of business, except for any Real Property Leases;
(viiivii) providing any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets long-term discount commitments by the Company or any Company Subsidiary pursuant to which in excess of 30% off of the Company’s or any Company Subsidiary’s customary body shop pricing, other than those Contracts that are terminable by the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” on no more than sixty (60) days notice without liability or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)financial obligation;
(ixviii) each Contract any employment or consulting agreement, contract or commitment with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange any officer or sales of gas, oil director level employee or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation member of the Company Company’s board of directors or any other employee who is one of the Company Subsidiariestwenty (20) most highly compensated employees, as the case may beincluding base salary and bonuses, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of than those Contracts that are terminable by the Company or any Company Subsidiary is on no more than sixty (with 60) days notice without liability or without notice financial obligation or lapse of time, or both) in breach or default under any such Company Contract and, benefits generally available to the Knowledge employees of the Company; or
(ix) any Contract for capital expenditures in excess of $500,000 individually or $3,000,000 in the aggregate. Each Contract of the type described in this Section 4.10.1(excluding any Real Property Leases, no other party which are addressed exclusively in Section 4.16) is referred to any such herein as a “Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Contract.”
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LKQ Corp), Merger Agreement (Keystone Automotive Industries Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.11(a) of the Company Disclosure Letter, Schedule sets forth a complete and accurate list as of the date hereof, neither of this Agreement of the following contracts and agreements to which the Company nor or any Company Subsidiary of its Subsidiaries is a party to, and none of their respective properties under which the Company or assets is bound by any of its Subsidiaries has any remaining rights or obligations (collectively, the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company ContractMaterial Contracts”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) Intellectual Property Agreement, excluding generally commercially available, off-the-shelf software programs with annual license, maintenance, support and other fees of Regulation S-K under the Securities Act that has not been so filedless than $5,000 individually;
(ii) each Contract any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for remaining unpaid lease payments as of the date hereof in excess of $50,000;
(iii) any agreement (or group of related agreements) for the purchase of raw materials, inventory, or finished goods or for the receipt of services under which the Company or any Company Subsidiary of its Subsidiaries expects to receive or pay more than the sum of $50,000;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets;
(v) any agreement concerning the establishment or operation of a partnership, joint venture, limited liability company or other business organization;
(vi) any agreement to which a Governmental Entity is a party that party;
(avii) restricts any agreement containing covenants of the Company or any of its Subsidiaries not to (or otherwise restricting or limiting the ability of the Company or any Company Subsidiary to engage in or of its Subsidiaries to) compete in any line of business in or geographic or therapeutic area, including any manner that is material covenant not to compete with respect to the Company and the Company Subsidiariesmanufacture, taken as a wholemarketing, (b) requires the Company distribution or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor sale of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeproduct or product line;
(iiiviii) each Contract to any agreement (or group of related agreements) under which the Company or any Company Subsidiary is a party that provides for payments to of its Subsidiaries has created, incurred, assumed or from guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations);
(ix) any agreement under which the Company or any of its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (has made advances or loans to any other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)person;
(ivx) each principal Contract creatingany agreement for the disposition of any significant portion of the assets of the Company or its Subsidiaries;
(xi) any agreement for the acquisition of any business or any corporation, guaranteeing partnership, joint venture, limited liability company, association or securing Indebtedness for borrowed money other business organization or division thereof, except purchases of inventory, supplies and raw materials in the ordinary course of business;
(xii) any powers of attorney;
(xiii) any employment, severance, separation or consulting agreement with any executive officer or key employee of the Company or any of its Subsidiaries other than those that are terminable by the Company Subsidiaries in excess or the applicable Subsidiary on no more than 60 days’ notice without material liability or financial obligation to the Company or any of Twenty-Five Million Dollars its Subsidiaries;
($25,000,000xiv) (other than Contracts for Indebtedness or Indebtedness solely any agreement between the Company or any of its Subsidiaries, on one hand, and any of its wholly-owned Company Subsidiaries the Company’s stockholders, directors, officers or between employees, on the wholly-owned Company Subsidiaries);other; and
(vxv) each material Contract with respect to the creation, formation, governance any other agreement (or control group of any material partnerships, joint ventures related agreements) involving unpaid amounts of more than $50,000 or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than not entered into in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected The Company has made available to have, individually or in the aggregate, Buyer a complete and accurate copy of each Company Material Adverse EffectContract, (i) each together with any amendments, exhibits and schedules thereto. Each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Material Contract is in full force and effect with respect to the Company or the applicable Subsidiary and, to the Company’s Knowledge, with respect to each other party thereto, and is a valid and binding obligation of each party thereto, subject to the Bankruptcy and Equity Exception and except to the extent it has previously expired in accordance with its terms. None of the Company Subsidiariesnor any of its Subsidiaries nor, as the case may be, and to the Knowledge Company’s Knowledge, any other party to any Company Material Contract is in material violation of or in material default under any Company Material Contract, nor does there exist any condition which, upon the Companypassage of time or the giving of notice or both, would reasonably be expected to (i) cause such a material violation of or material default or (ii) give any third party (A) the other parties thereto and right to declare a default or exercise any remedy under any Company Material Contract, (iiiB) none the right to accelerate the maturity or performance of any obligation of the Company or a Subsidiary under any Company Subsidiary is Material Contract, (with C) the right to cancel, terminate or without notice materially modify any Company Material Contract or lapse of time, or both(D) in breach or default a right to a penalty under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Centessa Pharmaceuticals LTD), Merger Agreement (Cornerstone Therapeutics Inc)
Contracts. (a) Except for the Company Benefit Plans and Contracts filed as exhibits to any Company Report, Report or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each any Contract to which the Company or any Company Subsidiary is a party that (a1) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b2) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c3) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each any Contract to which the Company (1) constituting a credit agreement, loan agreement, indenture or any Company Subsidiary is a party that provides similar agreement for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing outstanding Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars $25 million, whether secured or unsecured; or ($25,000,0002) that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support or any capital contribution to, or other investment in, any Person (other than Contracts for Indebtedness or Indebtedness solely between the Company and any Company) in excess of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)$25 million;
(viv) each any (1) material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or ventures, joint ownership arrangements, strategic alliances or other similar arrangements with third partiesparties or (2) any material Tax Equity Transaction Document;
(viv) each any Contract that (A1) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) 25 million in the aggregate, (B2) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) 25 million in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C3) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vi) any Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchanges or sales of gas, oil or electric energy in excess of $50 million in the aggregate (other than Contracts solely between the Company and any of its wholly owned Subsidiaries or solely among its wholly owned Subsidiaries);
(vii) any Contract that requires otherwise limits or restricts the Company payment of dividends or any Company Subsidiary to make any advance, loan distributions in respect of the capital stock or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than equity interests of the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 2022 that relates to the settlement (or proposed settlement) of any pending or threatened proceeding (other than Regulatory Proceedings), other than any settlement that would reasonably be expected to result in aggregate payments of less than $25 million in cash (net of any amount covered by insurance or indemnification that is reasonably expected to be received by the Company or any Company Subsidiary); or
(ix) any Contract entered into since January 1, 2022 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year 25 million after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)hereof.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. Neither the Company nor any Company Subsidiary has received written notice of (1) any violation or default under any Company Contract or (2) any termination or threatened termination of any Company Contract, except for violations, defaults or terminations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has made available to Parent Parent, or have otherwise filed with the SEC, true and complete copies of each Company Contract in all material respects (including, for the avoidance of doubt, all material amendments, modifications, extensions, extensions or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Reportthis Agreement, or set forth in Section 3.15 2.13(a) of the Company Disclosure LetterLetter sets forth a true and complete list, as of the date hereof, neither and the Company nor any Company Subsidiary is a party tohas made available to Parent true, correct and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Lettercomplete copies, a “Company Contract”):of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (aA) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person in any manner that is material geographical area (other than restrictions with respect to “exclusivity” of the type described in clause (D) of this clause (ii)), (B) provides any third party a right of first offer, right of first refusal, right of first negotiation or similar obligation with respect to any assets of the Company and the or any Company Subsidiaries, taken as a wholeSubsidiary (including Owned Intellectual Property), (bC) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (cD) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeparty;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides either (A) provided for annual payments or receipts by the Company together with the Company Subsidiaries for the twelve-month period ending December 31, 2017 or (B) is reasonably expected to provide for payments to or from receipts by the Company or any its together with the Company Subsidiaries for the twelve-month period ending December 31, 2018, in the case of each of clauses (A) and (B), with respect to annual payments, in excess of Fifty Million Dollars ($50,000,000) 500,000, and with respect to annual receipts, in the aggregate after the date excess of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)$250,000;
(iv) each principal Contract creating, guaranteeing to which the Company or securing Indebtedness any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty in respect of indebtedness for borrowed money;
(v) each Contract with or binding upon the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its whollytheir respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-owned Company Subsidiaries or between K under the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesSecurities Act;
(vi) each material IP Contract that (A) relates to the acquisition of assets (other than non-exclusive licenses of Company Intellectual Property granted to customers in the ordinary course of business) , or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates licenses to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of commercially available Software granted to the Company or any Company Subsidiary that do not require payments in excess of $50,000 over the Company Subsidiaries with a total consideration term of more than Twenty-Five Million Dollars such license);
($25,000,000vii) in the aggregate or any capital stock or other securities (by mergereach partnership, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal joint venture or similar right pursuant agreement to which the Company or any Company Subsidiary could be required is a party that relates to purchase the formation, creation, operation, management or sell, as applicable, control of any of the foregoing;
(vii) any Contract that requires the Company partnership or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)joint venture;
(viii) each acquisition or divestiture Contract (including any Contract entered into since January 1, 2016 that relates containing an option to the sale, transfer acquire or other disposition of a business or assets by the Company or any Company Subsidiary pursuant divest) to which the Company or any Company Subsidiary has is a party contemplating payments (including the maximum amount of any continuing indemnification, guarantee, “earnoutearn-out” or other contingent, deferred contingent payment obligations) by or fixed payment obligations that would reasonably be expected to result in aggregate payments the Company and/or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000)125,000 of future payments in the aggregate;
(ix) each stockholders’, investors rights’, registration rights or similar Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between to which the Company and or any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andCompany Subsidiary is a party;
(x) each Contract with a term exceeding one that, following the Closing, would bind, binds or purports to bind Parent or any of its Affiliates (1other than the Company and the Company Subsidiaries);
(xi) year after each Contract which requires or is in respect of any unpaid capital commitment or capital expenditure(s) by the date of this Agreement which is a financial derivative interest rate hedge with a value Company or any Company Subsidiary in an amount in excess of Ten Million Dollars $250,000; and
(xii) each Contract relating to employment and consulting or severance, in each case, that involve an aggregate future or potential liability in excess of $10,000,000125,000. Each such Contract described in clauses (i) through (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)xii) above is referred to herein as a “Material Contract”.
(b) Except as would not have or would not reasonably be expected to have, individually or in Each of the aggregate, a Company Material Adverse Effect, (i) each Company Contract Contracts is a valid, binding and legally enforceable obligation of on the Company or one of the a Company SubsidiariesSubsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect effect. The Company and each Company Subsidiary, and, to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it prior to the other parties thereto and (iii) none of date hereof under each Material Contract. There is no default under any Material Contract by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no any other party to any such Company Contract is (thereto, and no event has occurred that with the lapse of time or without the giving of notice or lapse both would constitute a default thereunder by the Company or any Company Subsidiary or, to the knowledge of timethe Company, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect any other party thereto).
Appears in 1 contract
Sources: Merger Agreement (Neulion, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of Schedule 5.14(a), neither the Company Disclosure Letternor its Subsidiaries are parties to or bound by:
(i) any contract for the purchase or sale of goods or services which involved the payment of more than $250,000 in 2002;
(ii) any contract for the purchase or sale of goods or services which the Company reasonably anticipates may involve a contractual obligation for the payment by the Company of more than $250,000 in 2003 or any subsequent year;
(iii) any agreement which provides for, or relates to, the incurrence by the Company and its Subsidiaries of debt for borrowed money or the extension of credit (other than operating and working capital lines of credit or otherwise in the ordinary course of business consistent with past practice) by the Company and its Subsidiaries to any other Person;
(iv) any contract or group of related contracts for capital expenditures in excess of $100,000 for any single project or related series of projects;
(v) any partnership, joint venture or other similar arrangement or agreement involving a sharing of profits or losses;
(vi) any contract relating to any acquisition, sale, merger or divestiture of or by the Company (or any of its Affiliates) which contains any ongoing indemnification obligation by or to the Company (or any of its Affiliates) in effect as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):.
(ivii) any Contract required to be filed by the Company as a “material employment, severance, termination, consulting, or retirement contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;; and
(iiviii) each Contract to any contract which the Company prohibits or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries from engaging in excess any business activities in any geographic area, line of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or otherwise in competition with any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Person.
(b) Except With respect to each contract required to be listed in Schedule 5.14(a), and except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, disclosed on Schedule 5.14(b):
(i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract contract is in full force and effect with respect to effect;
(ii) neither the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and nor any Subsidiary is in default thereunder;
(iii) none neither the Company nor any Subsidiary has repudiated or waived any material provision of any such contract; and
(iv) to the knowledge of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the CompanySubsidiary, no other party to any such Company Contract contract is (with in default in any respect or without notice has repudiated or lapse of time, or both) in breach or default waived any material provision thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set Set forth in Section 3.15 Schedule 3.15(a) of the Company Seller Disclosure LetterSchedules is, as of the date hereof, neither a true and correct list of all of the following Contracts to which any Acquired Company nor any Company Subsidiary is a party to, and none or by which any of their its respective properties or assets is bound by are bound, other than any insurance policies covering any Acquired Company or any of its respective assets (the following categories of Contracts (each such Contract set forth or required to be filed as an exhibit to any Company Report or listed set forth in Section 3.15 Schedule 3.15(a) of the Company Seller Disclosure Letter, a Schedules are collectively referred to herein as the “Company Material Contracts” and, as used in this Section 3.15, “Contracting Party” shall refer to the Acquired Company party to such Company Material Contract”):
(i) all Operating Contracts providing for the payment by or to the Contracting Party in excess of the Relevant Material Contract Amount per year, other than (A) any Contract required Contracts with another Acquired Company to be filed document certain intercompany loans or (B) any Contracts with any Acquired Company for the provision of services and/or payment of costs, which are terminable by the Company as a “material contract” pursuant to Item 601(b)(10either party thereto upon not more than sixty (60) of Regulation S-K under the Securities Act that has not been so fileddays’ notice;
(ii) each Contract to which all Contracts (other than Operating Contracts) requiring a future capital expenditure by the Company or any Company Subsidiary is a party that (a) restricts the ability Contracting Party in excess of the Company or any Company Subsidiary to engage in or compete Relevant Material Contract Amount in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, twelve-month (b12-month) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeperiod;
(iii) each Contract to all Contracts under which the Company Contracting Party is obligated to sell real or any Company Subsidiary is personal property having a party that provides for payments to or from the Company or any its Subsidiaries value in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)Relevant Material Contract Amount;
(iv) each principal Contract creating, guaranteeing all Contracts or securing Indebtedness for borrowed money business arrangements between (A) any officer or director of the any Acquired Company or any of Affiliate thereof, on the Company Subsidiaries in excess of Twenty-Five Million Dollars one hand, and ($25,000,000B) (such Acquired Company, on the other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)hand;
(v) each material Contract with respect to all Contracts for the creation, formation, governance purchase or control sale of any material partnershipsbusiness, corporation, partnership, joint ventures venture, association or joint ownership arrangements with third partiesother business organization or any division, assets, operating unit or product line thereof which have a purchase or sale price in excess of the Relevant Material Contract Amount;
(vi) each Contract all shareholders, partnership, limited liability company, voting, joint venture or similar agreements to which any Project Company or Company Subsidiary is a party, by which a Project Company or Company Subsidiary is bound or to which a Project Company or Company Subsidiary is subject (other than any such agreements of any Company Subsidiary or Project Company that is wholly owned, directly or indirectly, by such Company, or by which any such Person is bound);
(vii) all Contracts under which the Contracting Party (A) relates directly or indirectly created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) or otherwise provided or may provide credit support of, Indebtedness, (B) granted a Lien on its assets, whether tangible or intangible, to secure such Indebtedness or (C) extended credit or advanced funds to any Person or (D) has any obligations relating to the acquisition financial condition of assets any other Person (including so-called “keepwell” agreements), in each case, in excess of the Relevant Material Contract Amount;
(viii) all Contracts with a current and enforceable indemnification obligation that would reasonably be expected to result in payments in excess of $500,000 to or from any Person with respect to liabilities relating to any current or former business of any Acquired Company or any predecessor Person, other than in the ordinary course of business;
(ix) or capital stock or other securities (by merger, capital contribution or otherwise) of all Contracts with any Person after the date of this Agreement with Governmental Entity having a total consideration of more than Twenty-Five Million Dollars ($25,000,000) value in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets excess of the Company or the Company Subsidiaries with Relevant Material Contract Amount;
(x) all Contracts that grant a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or right of first offer or similar right pursuant with respect to which the Company or (A) any Company Subsidiary could be required to purchase or sell, as applicable, any assets of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with Contracting Party having a value in excess of Ten Million Dollars the Relevant Material Contract Amount, (B) any direct or indirect economic interest in the Contracting Party having a value in excess of the Relevant Material Contract Amount, or (C) materially limiting the ability of an Acquired Company to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets, property or business;
(xi) all Contracts with any officer, individual employee or independent contractor on a full-time, part-time, consulting or other basis and providing annual compensation in excess of $10,000,000500,000, including, in each case, Contracts with respect to employment or similar arrangements for the provision of services to the Acquired Company on a full- or part-time basis;
(xii) all Contracts relating to severance, separation, change in control, retention or similar arrangements for the provision of services to the Acquired Company on a full- or part-time basis with any executive officer, plant manager, or any other employee of any Acquired Company whose Knowledge is referred to in this Agreement;
(xiii) outstanding futures, swap, hedge, collar, put, call, floor, cap, option or other than Contracts solely between that are intended to benefit from or reduce or eliminate the Company and risk of fluctuations in interest rates or the price of commodities, including electric power, in any form, including energy, capacity or ancillary services or securities; and
(xiv) any Contract providing for the use of its wholly-owned Subsidiaries material Intellectual Property which has an annual license payment or solely among its wholly owned Subsidiaries)fee in excess of the Relevant Material Contract Amount.
(b) Except as would not set forth in Schedule 3.15(b)(i) of the Seller Disclosure Schedules, Sellers have made available to Purchasers true, complete and correct (in all material respects) copies of all Company Material Contracts. Except as set forth in Schedule 3.15(b)(ii) of the Seller Disclosure Schedules, each Company Material Contract is (i) in full force and effect and (ii) the valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Sellers, of each other party thereto, in each case (x) except as limited by Laws affecting the enforcement of creditors’ rights generally or by general equitable principles and (y) with such exceptions as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth in Schedule 3.15(b)(ii) of the Seller Disclosure Schedules, (iA) each no Acquired Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the material breach or default under any Company and the Company SubsidiariesMaterial Contract, as the case may bewhich material breach or default has not been waived, and to the Knowledge of the Companyno event has occurred which, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in would reasonably be expected to constitute such a material breach or default under any such Company Contract anddefault, (B) to the Knowledge of the CompanySellers, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in material breach or default thereunder. The under such Company Material Contract and (C) no Acquired Company has made available to Parent true and complete copies received any written claim or notice of each material breach or default under any Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.15(a) of the Company Disclosure LetterSchedule sets forth, as of the date hereof, neither a true and complete list of any of the following Contracts to which the Company nor or any Company Subsidiary of its Subsidiaries is a party to, and none or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):are bound:
(i) collective bargaining agreement or other Contract with any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedlabor organization, union or labor association;
(ii) each Contract to which for the Company or employment of any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business Participant on a “most favored nations” full-time or consulting basis providing for base salary compensation in excess of $100,000 per annum, except for offer letters for at-will employees that can be terminated for no consideration other than accrued compensation, benefits and severance consistent with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeCompany's past practice;
(iii) each Contract to which the Company for any joint venture, partnership or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)similar arrangement;
(iv) each principal Contract creatingagreement or indenture relating to the borrowing of money or incurrence of Indebtedness or to mortgaging, guaranteeing pledging or securing Indebtedness otherwise placing a Lien, except for borrowed money Permitted Liens, on any material portion of the assets of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control guaranty of any obligation for borrowed money or other material partnerships, joint ventures or joint ownership arrangements with third partiesguaranty;
(vi) each Contract that (A) relates to under which the acquisition Company or a Subsidiary of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this AgreementCompany has, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make made any advance, loan loan, extension of credit or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company), in any Company Subsidiary) such case which, individually, is in excess of Twenty$50,000;
(vii) Contract (other than for Off-Five Million Dollars the-shelf Software or non-exclusive licenses of Intellectual Property entered into in the ordinary course of business) that licenses material Intellectual Property to the Company or any of its Subsidiaries, or under which the Company or one of its Subsidiaries grants a license to material Intellectual Property ($25,000,000each, a "License Agreement");
(viii) Real Property Lease for any Leased Real Property;
(ix) lease or agreement under which the Company or any of its Subsidiaries is lessee of, or holds or operates any personal tangible property owned by any other party, for which the annual rental exceeds $50,000;
(x) lease or agreement under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any tangible personal property, for which the annual rental exceeds $50,000;
(xi) Contract to sell any of the Company or its Subsidiaries' properties or assets for consideration in excess of $100,000 or any properties or assets that are material to the Company and its Subsidiaries, taken as a whole;
(xii) Contracts or group of related Contracts (A) representing the Company's and its Subsidiaries' Contracts with their top ten (10) customers based on the amount of payment to the Company or its Subsidiaries or (B) with the same party for the sale of products or services by the Company or its Subsidiaries providing for payment to the Company or its Subsidiaries in excess of $100,000 from such customers during the calendar year 2016;
(xiii) Contracts or group of related Contracts, other than purchase orders entered into since January 1in the ordinary course of business and video programming agreements (A) representing the Company's and its Subsidiaries' Contracts with their top ten (10) suppliers or vendors based on the amount of payment by the Company or its Subsidiaries or (B) with the same party for the purchase of materials, 2016 that relates supplies, equipment, products or services providing for payments in excess of $500,000 to such suppliers or vendors during the salecalendar year 2016;
(xiv) Contracts relating to any completed business acquisition by the Company or its Subsidiaries within the three (3)-year period ended on the date of this Agreement or under which the Company or any of its Subsidiaries is or may become obligated to pay any amount in respect of an "earn out", transfer deferred or conditional purchase price, purchase price adjustment or other disposition of a similar obligations;
(xv) Contract relating to any pending business or assets acquisition by the Company or any of its Subsidiaries;
(xvi) programming or retransmission consent agreement (including any programming agreements with the National Cable Television Cooperative);
(xvii) Contract relating to the use of any public utility facilities, including all pole line, joint pole or master contracts for pole attachment rights, other rights-of-way or encroachment permits or the use of conduits by the Company Subsidiary pursuant or its Subsidiaries and agreements necessary to permit the Company and its Subsidiaries to install, maintain, operate and use utility and rail road company poles, in each case, (A) in which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments its Subsidiaries spent in excess of Twenty$250,000 during the calendar year 2016 or (B) with American Electric Power, Entergy, Ameren or Duke Energy;
(xviii) Contract for the use of any microwave or satellite transmission facilities in which the Company or its Subsidiaries spent in excess of $50,000 during the calendar year 2016;
(xix) Contract with multiple dwelling units or commercial establishments under which the Company or its Subsidiaries generated revenues in excess of $50,000 during the calendar year 2016;
(xx) (A) fiber or fiber-Five Million Dollars swap agreement, (B) circuit agreement, (C) traffic exchange agreement, (D) interconnection agreement, (E) billing agreement, (F) agreement for the provision of IVR services or (G) indefeasible right of use (IRU) agreements, in each case, under which the Company or its Subsidiaries generated revenue or spent, as applicable, in excess of $25,000,00050,000 during the calendar year 2016;
(xxi) material Contract granting to the counterparty any rights of first refusal, first negotiation, first offer or similar right or Contract that materially limits or purports to materially limit the ability of the Company or its Subsidiaries or other Affiliates to own, operate, sell, transfer, or otherwise dispose of its material assets (other than the rights of first refusal, negotiation, offer or similar right that relates to the Company's or its Subsidiaries' advertising availabilities);
(ixxxii) Contract containing any material limitation on the freedom of the Company or any of its Subsidiaries or other Affiliates to operate its business or engage in any line of business, solicit or engage in business from or with any Person or compete with any Person or to operate at any location in the world, including non-competition and customer non-solicitation obligations, exclusivity rights and "most favored nation" provisions (other than channel placement covenants in video service agreements);
(xxiii) Contract that is a settlement, conciliation or similar agreement with any Governmental Authority that imposes any material unpaid monetary or other ongoing obligation upon the Company or any of its Subsidiaries;
(xxiv) each Contract with a term exceeding one any Equityholder or any other Affiliate of the Company or any of its Subsidiaries;
(1xxv) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement standalone confidentiality agreement (other than Contracts solely between those executed in connection with the Transactions or those entered into in the ordinary course of business consistent with past practices) obligating the Company and or its Subsidiaries to keep information confidential; or
(xxvi) commitment or agreement to enter into any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)foregoing.
(b) Except True and complete copies, as of the date hereof, of all written Contracts that are referred to in Section 3.15(a) (such Contracts, together with any Contract entered into after the date hereof that would not have or would not reasonably been required to be expected listed in Section 3.15(a) of the Disclosure Schedule if such Contract had been entered into prior to havethe date hereof, individually or the "Material Contracts"), together with all material amendments, waivers, consents and other changes thereto, have been made available to Purchaser in all material respects, other than Contracts with the aggregate, a Company National Cable Television Cooperative. Each Material Adverse Effect, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation of on the Company or one of its Subsidiaries to the extent the Company Subsidiariesor such Subsidiary is a party thereto, as applicable, and to the case may beCompany's Knowledge, each other party thereto, and is in full force and effect and enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception), in each case, in all material respects. The Company and each of its Subsidiaries and, to the Company's Knowledge, any other party thereto, has performed in all material respects all obligations required to be performed by it under each Material Contract. To the Company's Knowledge, no event in the nature of a default has occurred which, with notice, lapse of time or both, would permit the termination, acceleration in any material respect or modification in any material respect of any Material Contract by any party thereto. Neither the Company nor any of its Subsidiaries has provided or received any written notice of any intention to terminate any Material Contract. There are no material disputes pending or, to the Knowledge of the Company, threatened with respect to any Material Contract or any counterparty thereto.
(c) (i) The Company has no Knowledge of any material pending audits with respect to any utility attachment or conduit usage under any pole attachment agreement or any unresolved material disputes with respect to any such audit and the other parties theretoCompany and its Subsidiaries have not received any written notice of any such planned audit, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and its Subsidiaries have paid all pole attachment fees (including any penalties, charges or other fees charged pursuant to the Company Subsidiariespole attachment agreement) relating to the System when due and payable, as except where the case may failure to make such payment would not reasonably be expected to be, and individually or in the aggregate, material to the Knowledge operation of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)System.
Appears in 1 contract
Sources: Merger Agreement (Cable One, Inc.)
Contracts. Company has delivered to Parent true and complete copies (aand any and all binding amendments, modifications and supplements thereto) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letterfollowing (the “Material Contracts”), which, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to shall be filed as an exhibit to any Company Report or listed in Section 3.15 on Schedule 4.11 of the Company Disclosure Letter, a “Company Contract”):Schedule:
(i) any Contract required all Contracts of Company with customers of Company involving payments by or to be filed by Company in excess of $100,000 for the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedtwelve (12)-month period ending on June 30, 2004;
(ii) each Contract all Contracts of Company with Persons which are not customers of Company involving payments by or to which Company in excess of $50,000 for the Company or any Company Subsidiary is a party that twelve (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries12)-month period ending on June 30, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole2004;
(iii) each Contract to which the all Contracts of Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (entered into other than in the ordinary course of business;
(iv) all Contracts of Company that restrict the ability of Company to compete in any business or capital stock area;
(v) all Contracts of Company with “most favored customer” pricing provisions;
(vi) all Contracts of Company pursuant to which Company receives its sole source of supply of any material or item which is incorporated in or used by Company to manufacture, distribute or sell a Company Product;
(vii) all Contracts of Company with any Affiliate, director, officer or employee of Company, other than contracts which do not vary in any material respect from the standard form of such contracts provided to Parent;
(viii) all Contracts of Company pursuant to which Company is granted material rights in the Intellectual Property of any third person, other than Contracts pursuant to which independent contractors assign Intellectual Property to Company which do not vary in any material respect from the standard form of such contracts provided to Parent;
(ix) all Contracts of Company pursuant to which Company grants material rights in Intellectual Property to any third person, other than non-exclusive end user licenses which do not vary in any material respect from the standard form of such contracts provided to Parent;
(x) all joint venture, partnership, collaboration or other securities similar contracts, agreements or arrangements to which Company is a party;
(xi) all Contracts relating to the borrowing of money or extension of credit (collectively, “Debt Obligations”) pursuant to which any material indebtedness of Company is outstanding or may be incurred and all guarantees of or by merger, capital contribution or otherwise) Company of any Person after the date Debt Obligations of this Agreement with a total consideration any other Person, other than standard form invoices relating to accounts payable of more than Twenty-Five Million Dollars ($25,000,000) Company disclosed in the aggregateCompany Reports or incurred in the ordinary course of business since June 30, 2004;
(xii) (A) all Contracts of Company granting any right to make, have made, manufacture, use, sell, offer to sell, import, export, or otherwise distribute any product of Company, currently being distributed or currently under development (a “Company Product”), with or without the right to sublicense the same, in each case on an exclusive basis, (B) relates any Contract by which Company grants any ownership right to any Intellectual Property owned by Company, (C) any Contract under which Company grants an option relating to acquiring ownership of any Intellectual Property owned by Company, (D) any Contract under which Company has a stated obligation to make fixed payments of minimum royalties, license fees or service fees aggregating in excess of $50,000 during the disposition calendar year ending December 31, 2004 with respect to any Intellectual Property owned by Company, (E) any Contract of Company that grants a customer a refund right (other than as a remedy for a breach of warranty) on the installation of a Company Product, and that refund period with respect to any such installation has not passed, lapsed, expired or terminated; and (F) any Contract pursuant to which Company has deposited or is required to deposit with an escrow agent or any other Person any Intellectual Property Rights for Company Products;
(xiii) all Contracts containing any provision requiring the Company to indemnify another party (other than indemnities contained in agreements entered into the ordinary course of business) after the date or containing any covenants not to bring a legal action against any third party;
(xiv) all powers of this Agreementattorney given by Company and contracts, directly agreements and arrangements pursuant to which Company has any obligations or indirectlyliabilities (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, or otherwise in respect of assets any obligation of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate any Person, or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal maintenance or similar right pursuant to which the Company agreements or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)arrangements.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation has performed all of the Company or one of the Company Subsidiaries, as the case may be, and, material obligations required to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may bebe performed by it, and to the Knowledge of the Company, the other parties thereto and (iii) none is not alleged in writing to be in default in respect of any Material Contract. Each of the Material Contracts is in full force and effect, constitutes a legal, valid and binding agreement enforceable in accordance with its terms (subject to applicable laws of bankruptcy, insolvency or similar laws relating to creditors’ rights generally and to general principles of equity, whether applied in a proceeding in law or equity) against Company and there exists no material default or any event of default or event, occurrence, condition or act, with respect to Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge of the Company, with respect to the other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would become a material default or event of default under any Material Contract. To the Knowledge of Company, Company has not, as of the date hereof, entered into a Contract with a Specially Designated National or Blocked Person as defined by the Office of Foreign Asset Control of the United States Department of the Treasury.
(c) Except as set forth in the Company Disclosure Schedule, the execution of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or cause a breach of any Material Contract (or which with the giving of notice or lapse of time or both could reasonably be expected to become a breach) and no approval or consent of any other party to any such Company Contract of Material Contracts is (with or without notice or lapse required in order for those Material Contracts to continue in effect after the consummation of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Merger.
Appears in 1 contract
Contracts. (a) Except for Section 3.18 (a) of the Disclosure Schedules lists each of the following Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter(such Contracts, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of together with all Contracts (each such Contract required to be filed as an exhibit to listed or otherwise disclosed in any Company Report or listed in other Section 3.15 of the Disclosure Schedules, being “Material Contracts”): (i) each Contract of the Company Disclosure Letter(other than employment agreements) involving aggregate consideration in excess of twenty-five thousand dollars ($25,000) per annum and which, a “Company Contract”):
(i) any Contract required to in each case, cannot be filed cancelled by the Company as a “material contract” pursuant without penalty or without more than ninety (90) days’ notice (and, to Item 601(b)(10) of Regulation S-K under the Securities Act that has extent not been so filed;
(ii) captured by the foregoing, each Contract with a Material Supplier); (iii) all Contracts that provide for unlimited indemnification by the Company of any Person (other than for infringement of intellectual property rights, breach of confidentiality and data security obligations, fraud, willful misconduct and gross negligence), or the assumption of any Tax of any Person other than VAT and sales tax; (iv) all Contracts that relate 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); (iv) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any Company Subsidiary is a party party; (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party; (vii) except for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees) of the Company; (viii) all Contracts with any Governmental Authority to which the Company is a party; (ix) all Contracts that (a) restricts limit or purport to limit the ability of the Company or any Company Subsidiary to engage in or compete in any line of business or with any Person or in any manner geographic area or during any period of time; (x) all Contracts that limit or purport to limit the ability of any officer or employee of the Company to compete with the Company in any geographic area or during any period of time; (xi) any Contracts to which the Company is material a party that provide for any joint venture, partnership or similar arrangement by the Company; (xii) all Contracts between or among the Company on the one hand and any Seller or any Affiliate of any Seller (other than the Company) on the other hand; (xiii) all collective bargaining agreements or Contracts with any labor organization, union or association to which the Company is a party; and (xiv) any other Contract the expiry or termination of which would cause a Material Adverse Effect to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right not previously disclosed pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned SubsidiariesSection 3.18(a).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation of on the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy accordance with its terms and Equity Exceptions, (ii) each such Company Contract is in full force and effect. Neither the Company nor, to Company’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate or alter in any material respect, any Material Contract. To Company’s Knowledge, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute or give rise to an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been Made Available to Buyer. The Company has not given any powers of attorney or comparable delegations of authority to any Person for any reason other than the ordinary course powers of attorney to represent the Company on Tax matters set forth in Section 3.18(b) of the Disclosure Schedules, and no such power of attorney or comparable delegations of authority are in effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 1 contract
Contracts. (aA) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 2.9 of the Company Disclosure LetterSchedule identifies each Company Contract that constitutes a Significant Contract, as disclosed in subsections corresponding to the list set forth below. For purposes of the date hereofthis Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any each of the following categories of Contracts (each such Contract required shall be deemed to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, constitute a “Company "Significant Contract”):":
(i) any Contract required constituting a Company Employee Agreement providing for annual compensation to be filed by any individual in excess of $200,000, other than Contracts with German employees substantially in the form of the Company's standard Contract for such employees attached to Part 2.9(a) of the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedDisclosure Schedule;
(ii) each Contract any Contract: (A) with any works council, labor union or similar organization or body; (B) pursuant to which any of the Acquired Corporations is or may become obligated to make any severance, termination or similar payment to any Company Associate or any spouse, heir or Representative of any Company Subsidiary is a party that Associate; (aC) restricts the ability pursuant to which any of the Company Acquired Corporations is or may become obligated to make any Company Subsidiary to engage in bonus or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement payment (other than (A) Contracts for transportation payments constituting base salary or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than commissions paid in the ordinary course of business) in excess of $25,000 to any Company Associate; or capital (D) pursuant to which any of the Acquired Corporations is or may become obligated to accelerate the vesting of, or otherwise modify, any stock option, restricted stock, stock appreciation right or other securities equity interest in any of the Acquired Corporations;
(by mergeriii) any Contract identified or required to be identified in Part 2.8 of the Company Disclosure Schedule;
(iv) any Contract relating to the acquisition, capital contribution transfer, use, development, sharing or otherwise) license of any Person after technology or any Intellectual Property or Intellectual Property Right, other than: (A) Contracts pursuant to which the date of this Agreement with Company obtains a total consideration of more than Twentylicense from a third party only to general-Five Million Dollars ($25,000,000) in purpose, non-customized business application software that is not incorporated into any Company Product and is generally available to the aggregatepublic pursuant to a shrink-wrap, click-wrap or other similar mass-market license agreement; (B) relates to standard forms of the disposition type described in Section 2.8(b); and (other than C) Contracts entered into in the ordinary course of businessbusiness with customers for the sale of Company Products;
(v) after any Contract creating or relating to any partnership or joint venture or requiring any Acquired Corporation to share any revenues with any other Person (it being understood that "sharing of revenues" as contemplated by this clause "(v)" is not intended to include employee bonuses that are determined in part by the date of this Agreement, directly or indirectly, of assets revenues of the Acquired Corporations);
(vi) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries defense thereof; or (CB) contains a put, call, right indemnification of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoingAssociate;
(vii) any Contract that requires imposing any restriction on the Company right or ability of any Acquired Corporation: (A) to compete with any other Person; (B) to acquire any product or other asset or any Company Subsidiary services from any other Person; (C) to make solicit, hire or retain any advancePerson as a director, loan an officer or commitment therefor other employee, or provide as a consultant or an independent contractor; (D) to develop, sell, supply, distribute, offer, support or service any credit support for product or any capital contribution to, technology or other investment in, asset to or for any Person other Person; (E) to perform services for any other than the Company Person; or (F) to transact business or deal in any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)other manner with any other Person;
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company any Acquired Corporation grants or receives marketing, distribution, system integration, OEM or any Company Subsidiary has other similar rights for any continuing indemnification, guarantee, “earnout” product or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)service;
(ix) each any Contract creating a joint development, cooperative development, collaborative research or other similar arrangement with any Person;
(x) any Contract (other than Contracts evidencing Company Options or Company Stock Awards): (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities; (B) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any securities; or (C) providing any of the Acquired Corporations with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(xi) any Contract incorporating or relating to any guaranty, any warranty (other than warranties included in service contracts from suppliers which require annual payments of $25,000 or less and other than warranties in Contracts for the sale of Company Products), any sharing of liabilities or any indemnity (including any indemnity with respect to Intellectual Property or Intellectual Property Rights) or similar obligation, other than Contracts that do not deviate in any material respect from the standard forms referred to in Section 2.8(b);
(xii) any Contract with a term exceeding one Person that supplies products or services (1excluding Intellectual Property) year after to any Acquired Corporation where such products or services are not, as of the date of this Agreement for Agreement, commercially available from another Person;
(xiii) any Contract relating to the lease or sublease by any of the Acquired Corporations of any real property involving rents of more than $25,000 per year;
(xiv) any Contract (including Contracts relating to the sale, lease, license, installation, evaluation, testing, maintenance, repair or support of any Company Product) that contemplates or involves the future purchases, exchange payment or sales delivery of gas, oil cash or electric energy in excess of Fifty Million Dollars other consideration ($50,000,000to or by any Acquired Corporation) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries an amount or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with having a value in excess of Ten Million Dollars ($10,000,000) 500,000 in the aggregate under such Contract (other than Contracts solely between to purchase components for any Company Product if there is a Contract from a customer to purchase such Company Product), or contemplates or involves the performance of services (to or by any Acquired Corporation) having a value in excess of $500,000 in the aggregate under such Contract;
(xv) any Contract that has a term of more than one year and that may not be terminated by an Acquired Corporation (without penalty in excess of $25,000) within 60 days after the delivery of a termination notice by such Acquired Corporation (other than: (A) confidentiality or nondisclosure agreements entered into by any Acquired Corporation in the ordinary course of business consistent with past practices; (B) Contracts to sell Company Products entered into in the ordinary course of business consistent with past practices; (C) Contracts to purchase components for any Company Product if there is a Contract from a customer to purchase such Company Product; and (D) Contracts for the sale by the Company and of spare parts in the ordinary course of business consistent with past practices);
(xvi) any Contract relating to the acquisition, development, sale or disposition of any business unit or product line of any of its wholly-owned Subsidiaries the Acquired Corporations or solely among its wholly owned Subsidiaries).of any Company IP;
(bxvii) Except as would not have any Contract relating to the acquisition of a material portion of the assets of, or would not a material equity or other interest in, any other Entity or any business conducted by any other Entity; and
(xviii) any Contract: (A) requiring that any of the Acquired Corporations give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction; or (B) that could reasonably be expected to havehave a material effect on the ability of the Company to perform any of its obligations under this Agreement, individually or to consummate any of the Contemplated Transactions. The Company has delivered to Parent an accurate and complete copy of each Company Contract that constitutes a Significant Contract.
(B) Each Company Contract that constitutes a Significant Contract is valid and in the aggregatefull force and effect, a Company Material Adverse Effectand is enforceable in accordance with its terms, subject to: (i) each Company Contract is a validlaws of general application relating to bankruptcy, binding insolvency and legally enforceable obligation the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(C) Except as set forth in Part 2.9(c) of the Company or one of the Company Subsidiaries, as the case may be, and, Disclosure Schedule: (i) to the Knowledge of the Company, none of the other parties theretoAcquired Corporations has violated or breached in any material respect, subject or committed any default in all respects to the Bankruptcy and Equity Exceptionsany material respect under, any Company Contract; (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the no other parties thereto and Person has violated or breached in any material respect, or committed any default in any material respect under, any Company Contract; (iii) none to the Knowledge of the Company Company, no event has occurred, and no circumstance or any Company Subsidiary is condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (A) result in a violation or breach in any material respect of any of the provisions of any Company Contract; (B) give any Person the right to declare a default in any material respect under any Company Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate the maturity or performance of any Company Contract that constitutes a Significant Contract; or (E) give any Person the right to cancel, terminate or modify any Company Contract that constitutes a Significant Contract; and (iv) since January 1, 2003, none of the Acquired Corporations has received any notice or other communication regarding any actual or possible violation or breach of, or both) in breach or default under under, any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)that constitutes a Significant Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts as filed as exhibits to any the Company ReportSEC Documents filed prior to the date hereof, or set forth in Section 3.15 4.13(a) of the Company Disclosure LetterLetter sets forth a list of each note, as of the date hereofbond, neither the Company nor any Company Subsidiary is a party tomortgage, and none of their respective properties lien, indenture, lease, license, contract or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report agreement, or listed in Section 3.15 of the Company Disclosure Letterother instrument or obligation, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract oral or written, to which the Company or any Company Subsidiary is a party that or by which any of its properties or assets are bound (athe "Company Agreements") restricts which, to the ability Company's Knowledge and as of the Company or any Company Subsidiary date hereof:
(i) is required to engage in or compete in any business in any manner that is material be filed with the SEC pursuant to the Company and the Company Subsidiaries, taken as a wholeItem 601(b)(2), (b4), (9) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business (10) of Regulation S-K of the Company and the Company Subsidiaries, taken as a whole, or Exchange Act;
(cii) provides for “exclusivity,” rights is required to be described pursuant to Item 404 of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business Regulation S-K of the Company and the Company Subsidiaries, taken as a wholeExchange Act;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires obligates the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within sixty (60) days without material penalty to the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000), except for any Company Lease or any Master Lease;
(viiiiv) contains any Contract entered into since January 1, 2016 that relates non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the saleCompany or any Company Subsidiary, transfer or other disposition upon consummation of a the Transactions, Parent or Parent Subsidiaries, or which restricts the conduct of any business conducted by the Company or assets by any Company Subsidiary or any geographic area in which the Company or any Company Subsidiary may conduct business, except for any Company Lease or any Master Lease;
(v) obligates the Company or any Company Subsidiary to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or Company Subsidiary is the indemnitor, other than the Company Charter, the Company Bylaws, the articles or certificates of incorporation, bylaws, operating agreements (or comparable organizational or governing documents) of any Company Subsidiary;
(vi) constitutes an Indebtedness obligation of the Company or any Company Subsidiary has with a principal amount as of the date hereof greater than $1,000,000;
(vii) would prohibit or materially delay the consummation of the Merger or the other Transactions;
(viii) (A) requires the Company or any continuing indemnificationCompany Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease or Master Lease pursuant to the terms thereof), guarantee(B) gives any Person the right to buy any Company Property or obligates the Company or any Company Subsidiary to acquire, “earnout” sell or other contingententer into any lease for any real property or (C) involves any pending or contemplated merger, deferred consolidation or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)similar business combination transaction, except for any Company Lease or any Master Lease affecting any Company Property;
(ix) each constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract with relating to a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andhedging transaction;
(x) each Contract relates to a joint venture, partnership, strategic alliance or similar arrangement or relates to or involves a sharing of revenues, profits, losses, costs, or liabilities by the Company or any Company Subsidiary with any other Person;
(xi) contains restrictions on the ability of the Company or any Company Subsidiary to pay dividends or distributions;
(xii) is with a term exceeding one Governmental Entity, except for any Company Lease or any Master Lease; or
(1xiii) year after the date of this Agreement which is constitutes a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) loan to any Person (other than Contracts solely between a wholly owned Company Subsidiary) by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of its wholly-owned Subsidiaries Company Properties or solely among its wholly owned Subsidiariesthe funding of improvements to Company Properties).
(b) Each Company Agreement of the type described above in Section 4.13(a), whether or not set forth in Section 4.13(a) of the Company Disclosure Letter or filed as exhibits to the Company SEC Documents prior to the date hereof, is referred to herein as a "Company Material Contract." Except as would as, individually or in the aggregate, have not have or had, and would not reasonably be expected to have, a Company Material Adverse Effect, each Company Material Contract is legal, valid and binding on the Company and each Company Subsidiary that is a party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors' rights generally and by general principles of equity. Except as, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, (i) the Company and each Company Contract is a valid, binding and legally enforceable obligation of Subsidiary has performed all obligations required to be performed by it under the Company or one of the Company Subsidiaries, as the case may be, Material Contracts and, to the Knowledge of the Company, of the each other parties thereto, subject in party thereto has performed all respects obligations required to the Bankruptcy and Equity Exceptionsbe performed by it under such Company Material Contract, (ii) each such neither the Company Contract nor any Company Subsidiary, nor, to the Company's Knowledge, any other party thereto, is in full force and effect with respect to the breach or violation of, or default under, any Company and the Company SubsidiariesMaterial Contract, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (no event has occurred that with or without notice or lapse of timetime or both would constitute a violation, or both) in breach or default under any such Company Contract andMaterial Contract. Neither the Company nor any Company Subsidiary has received notice of any violation or default under any Company Material Contract, except for violations or defaults that individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. Neither the Knowledge Company nor any of the Company, no other Company Subsidiaries has received any written or oral notice of the intention of any party to cancel, terminate, materially change the scope of rights under or fail to renew any such Company Contract is Material Contract.
(with or without notice or lapse of time, or bothc) in breach or default thereunder. The Company has delivered or made available to Parent true or provided to Parent for review, prior to the execution of this Agreement, true, correct and complete copies of each all of the Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contracts.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 3.10(a) of the Company Disclosure LetterSchedule sets forth a true and complete list, as of the date hereofAgreement Date, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any all of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party or by which any of them is bound:
(i) any Company Contract that is required by the rules and regulations of the SEC to be filed as an exhibit to the Company SEC Documents;
(aii) restricts any Company Contract in connection with which or pursuant to which the ability Company or any Company Subsidiary is committed to spend, in the aggregate, more than $2,000,000 during the current fiscal year;
(iii) any Company Contract that generated more than $2,000,000 in revenues for the Company or any Company Subsidiary in the fiscal year ended December 31, 2016;
(iv) any Company Contract concerning the license, covenant not to ▇▇▇, or other waiver or grant of rights in Intellectual Property Rights (whether the Company or any of the Company Subsidiaries is the grantor or grantee of such rights), or the development or modification of any Intellectual Property, other than (A) licenses to COTS or nonexclusive to customers in the ordinary course of business, (B) Contracts entered into with employees, contractors, consultants and vendors in the ordinary course of business and under which the Company or any Company Subsidiary has not granted or received any material Intellectual Property Rights, and (C) non-disclosure and confidentiality agreements entered into in the ordinary course of business;
(v) any Company Contract evidencing Indebtedness;
(vi) any Company Contract evidencing any obligations of the Company or any Company Subsidiary with respect to the issuance, sale, repurchase or redemption of any equity securities of the Company or any Company Subsidiary;
(vii) any Lease;
(viii) any collective bargaining agreement or other Company Contract with any labor union, labor organization, works council or group of employees;
(ix) any Company Employee Agreement or Company Contract for the employment or engagement of any Person on a full-time or part-time basis, including directors, employees (temporary and seasonal) and independent contractors, in each case, at annual compensation in excess of $150,000; Table of Contents (x) any lease of personal property under which the Company or any Company Subsidiary is the lessee and is obligated to make payments of $50,000 or more per annum;
(xi) any Company Contract relating to any resolution or settlement of any actual or threatened Legal Proceeding involving the Company or any Company Subsidiary that imposes material continuing obligations upon the Company or any Company Subsidiary;
(xii) any Company Contract relating to the acquisition or disposition of any business, properties or assets, for consideration in excess of $500,000 by the Company or any Company Subsidiary or, to the extent still in force, with respect to which the Company or any Company Subsidiary has material continuing obligations;
(xiii) any Company Contract creating or relating to any material partnership, joint venture, or joint development agreement involving material continuing obligations;
(xiv) any Company Contract that constitutes an Affiliate Transaction; and
(xv) any Company Contract that: (A) limits the freedom of the Company or any Company Subsidiary to engage in any line of business, acquire any entity or compete with any Person or in any business in any manner that is material to the Company and the Company Subsidiaries, taken as market or geographical area; or (B) contains a whole, (b) requires the Company grant of exclusivity or any Company Subsidiary to conduct any business on a “most favored nationsnation” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets terms by the Company or any Company Subsidiary pursuant Subsidiaries to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Person.
(b) Except as would not have or would not reasonably be expected to have, individually or disclosed in the aggregate, a Company Material Adverse Effect, (iPart 3.10(b) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one Disclosure Schedule, all Contracts that are set forth in Part 3.10(a) of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy Disclosure Schedule (each a “Material Contract”) are valid and Equity Exceptions, (ii) each such Company Contract is in full force and effect effect, and are enforceable in accordance with respect their respective terms, subject to: (i) Laws of general application relating to the Company bankruptcy, insolvency and the Company Subsidiaries, as the case may be, and to the Knowledge relief of the Company, the other parties thereto debtors; and (iiiii) none rules of the Company or any Company Subsidiary is (with or without notice or lapse of timeLaw governing specific performance, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no injunctive relief and other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)equitable remedies.
Appears in 1 contract
Sources: Merger Agreement (NCI, Inc.)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 4.9(a) of the Company Sellers Disclosure LetterSchedule lists all Contracts, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts Sellers (each such Contract required primarily related to be filed as an exhibit to any Company Report the Business) or listed in Section 3.15 of the Company Disclosure LetterPurchased Entities, a that constitute the following (collectively, the “Company ContractMaterial Contracts”):
(i) Leases for Tangible Personal Property which require lease payments in excess of $250,000 in any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedtwelve (12)-month period;
(ii) each any Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect customer under which revenues were received by such Seller or Purchased Entity of $500,000 or more during the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholecurrent fiscal year to date on an annualized basis;
(iii) each any Contract with any vendor under which payments were made by such Seller or Purchased Entity of $250,000 or more during the current fiscal year to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)on an annualized basis;
(iv) each principal any Contract creatingthat is an Intellectual Property license to or from the Business, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness with respect to generally available software or Indebtedness solely between the Company hardware with annual or one-time license, maintenance, support and any other fees of its wholly-owned Company Subsidiaries $50,000 or between the wholly-owned Company Subsidiaries)less;
(v) each material Contract with respect any other Contracts that obligate such Seller or Purchased Entity to the creation, formation, governance or control pay an amount in excess of $500,000 in any material partnerships, joint ventures or joint ownership arrangements with third partiestwelve (12)-month period;
(vi) each any Contract containing a covenant not to compete that (A) relates impairs the ability to freely conduct the acquisition of assets (other than Business in the ordinary course any geographic area or any line of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires with (A) a top twenty five (25) customer for the Company current fiscal year to date on an annualized basis pursuant to which services are provided for a maximum fee pursuant to any cap or any Company Subsidiary similar provision; and (B) a top ten (10) customer for the current fiscal year to make any advance, loan date on an annualized basis pursuant to which “most favored nation” status (or commitment therefor similar status) is granted to a third party (whether in respect of pricing or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000otherwise);
(viii) any joint venture, partnership or similar arrangement, including any Contract entered into since January 1, 2016 that relates to the sale, transfer share profits or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)losses;
(ix) each any Contract with containing any obligation, such as a term exceeding one put or similar right, which could require the purchasing, redemption, or other acquisition of any equity securities of a third party;
(x) any Contract that provides for (A) the acquisition or disposition of any business, line of business, division or equity interests of any third party (whether by merger, sale of stock, sale of assets or otherwise) that closed following January 1) year after , 2010 and for which the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy aggregate consideration under such Contract is in excess of Fifty Million Dollars $5,000,000 or ($50,000,000B) the acquisition or disposition of any business, line of business, division or equity interests of any third party (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which any party thereto will have an obligation with respect to an “earn-out,” contingent purchase price, or similar contingent payment obligation or indemnification obligations (but excluding indemnification obligations relating to retained liabilities);
(xi) any Contract with any Governmental Authority and any written bids, proposals or other offers that could result in such a Contract;
(xii) any employment or consulting Contract with any Business Employee that (A) is not terminable at-will (or upon ninety (90) days or less notice) or (B) in the aggregate after the date any circumstance requires payment of this Agreement severance or other termination payment or benefit in connection with termination of employment, except where such payment or benefit is required under applicable Law;
(xiii) any collective bargaining, works council or other than Contracts solely between the Company and any of its wholly-owned Subsidiaries labor union Contract or solely among its wholly owned Subsidiaries)arrangement; and
(xxiv) each any outstanding written commitment to enter into any Contract with a term exceeding one (1of the type described in Section 4.9(a)(i) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiariesthrough Section 4.9(a)(xiii).
(b) Except as would not have Such Seller or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, Purchased Entity and, to the Knowledge of the CompanySellers, each of the other parties thereto, subject in has performed all respects obligations required to be performed by it to date under the Bankruptcy applicable Material Contracts and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is not (with or without notice or the lapse of timetime or the giving of notice, or both) in breach or default under in any material respect thereunder. A true, correct and complete copy of each Material Contract has been provided or made available to Buyer and each such Company Material Contract is a valid, legal and binding obligation of such Seller or Purchased Entity and, to the Knowledge of the CompanySellers, no each of the other party to any such Company Contract parties thereto, and is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true full force and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)effect.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.12(a) of the Company Disclosure LetterSchedule lists each of the following written or oral contracts and agreements to which the Company is a party or otherwise subject or bound or to which or by which any property, business, operation or right of the Company is subject or bound as of the date hereof, neither hereof (such contracts and agreements being the “Material Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company ContractContracts”):
(i) each contract and agreement for the purchase or lease of personal property with any Contract required supplier or for the furnishing of services to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedwith payments greater than $25,000 per year;
(ii) each Contract all broker, exclusive dealing or exclusivity, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in other contract that compensates any business in person based on any manner that is material to sales by the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeCompany;
(iii) each Contract to which the Company or all leases and subleases of real property, including without limitation, any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)capital lease;
(iv) each principal Contract creatingall leases, guaranteeing licenses or securing Indebtedness for borrowed money sublicenses of any asset, including any intellectual property not listed on Schedule 3.14 of the Company Disclosure Schedule, other than nonexclusive leases, licenses or any sublicenses of commercially available software that the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness has procured through shrink wrap, click wrap or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)purchase orders;
(v) each material Contract with respect all employment agreements and employment contracts that have an aggregate future liability in excess of $25,000, other than offer letters in a standard form that do not provide for any severance or bonus payments or provide for the grant of equity incentives not pursuant to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesexisting Company Plans;
(vi) each Contract that all contracts and agreements for any joint venture, partnership or similar arrangement;
(Avii) relates all contracts and agreements under which the Company has advanced or loaned an amount to the acquisition any of assets (its affiliates or employees other than in the ordinary course of business;
(viii) any contract or capital stock agreement relating to the acquisition or other securities disposition of (a) any business of the Company (whether by merger, capital contribution consolidation or other business combination, sale of securities, sale of assets or otherwise) of or (b) any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars asset ($25,000,000tangible or intangible) in the aggregate, (B) relates to the disposition (other than sales of supplies pursuant to purchase orders in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract any contract or agreement under which the Company is, or may become, obligated to pay an amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with a term exceeding one any (1a) year after the date acquisition or disposition of this Agreement for future purchases, exchange assets or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement securities (other than Contracts solely the sale of inventory in the ordinary course of business), (b) merger, consolidation or other business combination or (c) series or group of related transactions or events of the type specified in clauses (a) and (b) above;
(x) all contracts and agreements relating to indebtedness other than trade indebtedness of the Company in an aggregate amount not to exceed $100,000, including any contracts and agreements in which the Company is a guarantor of indebtedness;
(xi) all contracts and agreements under which any person has guaranteed any indebtedness of the Company;
(xii) all contracts and agreements that limit or purport to limit the ability of the Company to compete in any line of business or with any person or in any geographic area or during any period of time;
(xiii) all contracts and agreements relating to the voting and any rights or obligations of a stockholder of the Company;
(xiv) all contracts or agreements under which the Company is, or may become, obligated to incur any severance pay or other compensation obligations and all profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, or other plan or arrangement for the benefit of the Company’s current or former directors, officers and employees;
(xv) all contracts regarding the acquisition, issuance or transfer of any securities of the Company and each contract affecting or dealing with any securities of the Company, including, without limitation, any restricted stock agreements or escrow agreements;
(xvi) any agreement of guarantee, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any person other than software licenses or professional services contracts entered into in the ordinary course of business; and
(xvii) all contracts and agreements with Licensor (as defined hereinafter), including, without limitation, the License and Option Agreement by and between the Company and any LG Life Sciences, Ltd. (“Licensor”) dated as of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
October 22, 2002, as amended by Amendment No. 1 to the License and Option Agreement dated November 21, 2002, Amendment No. 2 to the License and Option Agreement dated December 6, 2002, and Amendment No. 3 to the License and Option Agreement dated October 16, 2003 (x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries“License Agreement”).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Each Material Company Material Adverse Effect, Contract (i) each Company Contract is a validlegal, valid and binding and legally enforceable obligation of on the Company or one of the Company Subsidiaries, as the case may beCompany, and, to the Knowledge knowledge of the Company, of on the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect effect, and is enforceable against the Company and, to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge knowledge of the Company, the is enforceable against each other parties party thereto and (iiiii) none upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. The Company or any Company Subsidiary is (with or without notice or lapse of time, or both) not in breach or violation of, or default under under, any such Material Company Contract and, to the Knowledge knowledge of the Company, no other party to any such Material Company Contract is (with or without notice or lapse of time, or both) in breach or violation thereof or default thereunder. The Company has made available to Parent true true, accurate and complete copies of each written agreement set forth on Schedule 3.12 of the Company Contract Disclosure Schedule, in each case, as amended or otherwise modified and in effect. There are no payments due and unpaid by the Company under any Material Company Contract, whether or not any other party thereto has agreed to forbear or waive any rights in connection with such non-payment (including, for other than payments set forth on Section 3.12(b) of the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect theretoCompany Disclosure Schedule and identified as not being made due to the amount in dispute).
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.17(a) of the Company Disclosure LetterSchedule sets forth a true and complete list, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):Contracts:
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party that (aA) restricts in any material respect the ability of the Company or any Company Subsidiary of its Subsidiaries to engage in or compete in any business or with any Person in any manner that is material to the Company and the Company Subsidiaries, taken as a wholegeographical area, (bB) requires the Company or any Company Subsidiary of its Subsidiaries to conduct any business on a “most favored nations” basis with any third party party; (C) provides for any Person to be the exclusive provider of any product or service to the Company or any Subsidiary or that restricts in otherwise involves the granting by the Company or any material respect Subsidiary to any Person of exclusive rights of any kind; (D) grants to any Person a right of first refusal, right of first negotiation, right of first offer or similar rights on the sale, disposition or license of any asset, property or part of the business of the Company and the Company Subsidiaries, taken as a whole, or any of its Subsidiaries or (cE) provides for contains any “exclusivity,take or pay” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business other obligations of the Company and the Company Subsidiaries, taken as a wholeor any of its Subsidiaries with respect to any minimum purchase requirements;
(iiiii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party that provides for payments to or from the Company or any of its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) 5,000,000 in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)Agreement;
(iviii) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company its Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) 15,000,000 (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-wholly owned Company Subsidiaries or solely between the wholly-Company’s wholly owned Company Subsidiaries);
(viv) each material Contract to which the Company or any of its Subsidiaries is a party with respect to the creation, formation, governance or control of any material partnerships, joint ventures ventures, strategic alliance, profit sharing arrangements, collaborations, co-promotions, joint research, joint development or joint ownership similar arrangements with third parties;
(viv) each Contract to which the Company or any of its Subsidiaries is a party that (A) relates to the acquisition of assets (other than in the ordinary course of business) acquisition, directly or capital stock or other securities indirectly (by merger, sale of equity, sale of assets, capital contribution or otherwise) ), of any equity or other securities, assets, business, unit or division of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) 5,000,000 in the aggregate, (B) relates to the disposition disposition, directly or indirectly (other than by merger, sale of equity, sale of assets, capital contribution or otherwise), of any assets (except assets disposed of in the ordinary course of business) after the date of this Agreement), directly business unit or indirectly, of assets division of the Company or its Subsidiaries that is either material to the Company or its Subsidiaries with or has a total consideration of more than Twenty-Five Million Dollars ($25,000,000) 5,000,000 in the aggregate aggregate, or any capital stock (C) relates to the disposition directly or other securities indirectly (by merger, sale of equity, sale of assets, capital contribution or otherwise) ), of any equity or other securities of the Company or the Company Subsidiaries its Subsidiaries, in each case whether or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoingnot consummated;
(viivi) any each Contract not entered into in the ordinary course of business that requires the Company or any Company Subsidiary of its Subsidiaries to make any advance, loan or commitment therefor or provide any credit support or guarantee for or any capital contribution to, or other investment in, any Person in excess of $5,000,000;
(other than vii) each indemnification or similar contract with Affiliates, managers, officers or directors of the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)its Subsidiaries;
(viii) any each Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary of its Subsidiaries has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)5,000,000;
(ix) each Company IP Agreement that is material to the business of the Company and its Subsidiaries;
(x) each Contract that (A) is a settlement or similar agreement with a term exceeding one (1) year any Governmental Authority or other Person in respect of any matter that is material to the business, assets or liabilities of the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries will be required to pay consideration in excess of $1,000,000 after the date of this Agreement Agreement, or (B) provides for future purchases, exchange any material injunctive or sales similar equitable obligations on the Company or any of gas, oil or electric energy its Subsidiaries that will remain in excess of Fifty Million Dollars ($50,000,000) in the aggregate effect after the date of this Agreement Agreement;
(xi) each Contract that relates to any outstanding commitment for capital or similar expenditures by the Company or its Subsidiaries in excess of $5,000,000 over the life of such Contract;
(xii) each Contract that is for the employment or engagement of any directors, employees or individual independent contractors of the Company or any of its Subsidiaries at annual base compensation in excess of $200,000;
(xiii) each Contract with a Company Affiliated Person;
(xiv) each Collective Bargaining Agreement;
(xv) each Lease and any other Contract relating to Leased Real Property;
(xvi) each material Contract that requires consent from the counterparty or, payments upon a “change in control” (or other similar concepts) of the Company or its Subsidiaries, including in connection with any of the Transactions;
(xvii) each Contract between any Person beneficially owning 5% or more of the outstanding shares of Company Common Stock (or its Affiliates), on the one hand, and the Company or any of its Subsidiaries, on the other hand (other than any Company Plan);
(xviii) each Contract (a) for amounts in excess of $500,000 required to comply with Nuclear Law (other than those with ANI or ▇▇▇▇); or (b) otherwise entered into with or for the benefit of a Governmental Authority (other than contracts solely for the provision of electricity), including the Company’s Standard Contracts solely between for Spent Fuel Disposal, the NRC Support Agreement, and the agreements governing the Decommissioning Trusts;
(xix) each Contract for the transportation, disposal, storage, recycling, or the arrangement of such activities with respect to Hazardous Materials or Nuclear Materials that would reasonably be expected to result in aggregate payments in excess of $1,000,000 per year;
(xx) each Contract with any Governmental Authority;
(xxi) each Fossil Divestment Agreement; and
(xxii) (A) each Contract, including any pricing schedule, with Major Customers or Major Suppliers, other than purchase orders entered into in the ordinary course of business and issued under a general or master agreement, or (B) any other Contract with any distributor, agent, broker, dealer, sales representative or authorized reseller of the Company Products or Services which (x) cannot by their terms be canceled by the Company or any of its Subsidiaries that is a party thereto without payment or penalty upon notice of sixty (60) days or less and (y) involve payments in excess of $5,000,000 in any twelve (12)-month period. Each such Contract described in clauses (i) through (xxii) above (whether or not set forth on Section 3.17(a) of the Company Disclosure Schedule and whether or not entered into or modified after the date of this Agreement), is referred to herein as a “Company Material Contract”.
(b) Each Company Material Contract (other than any Company Material Contract that has expired or been terminated in accordance with its terms) is valid, and binding on the Company and any of its wholly-owned Subsidiaries to the extent the Company or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which such Subsidiary is a financial derivative interest rate hedge party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with a value its terms (subject to the Bankruptcy and Equity Exception), except where the failure to be valid, binding, enforceable and in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company full force and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as effect, would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation whole. Each of the Company or one of the Company and its Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the any other parties party thereto, subject has performed all obligations required to be performed by it under each Company Material Contract, except where such noncompliance would not, individually or in all respects the aggregate, reasonably be expected to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect be material to the Company and the Company its Subsidiaries, taken as the case may bea whole. No event has occurred that, and with notice or lapse of time or both, would constitute a breach or default pursuant to the Knowledge of the Company, the other parties thereto and (iii) none of any Company Material Contract by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andits Subsidiaries or, to the Knowledge of the Company, no any other party thereto, except for such breaches and defaults that would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No party to any such Company Material Contract is has (i) exercised any termination rights with or without notice or lapse of timerespect thereto, or both(ii) given written notice of any material breach with respect to, or intent not to renew, any Company Material Contract, in breach the case of clauses (i) and (ii) that would, individually or default thereunderin the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. The Prior to the date of this Agreement, the Company has made available to Parent true correct and complete copies of all Company Material Contracts as of the date of this Agreement.
(c) Prior to the date of this Agreement, the Company has made available to Parent correct and complete copies of each Company Contract Fossil Divestment Agreement.
(includingd) There is no setoff amount, for the avoidance of doubt, all material amendments, modifications, extensionscounterclaim, or renewals other circumstance that would diminish or adversely affect the availability of litigation or settlement recoveries from the United States or the Department of Energy in connection with respect thereto)the Standard Contracts for Spent Fuel Disposal applicable to the Nuclear Sites. The Company or one of its Subsidiaries is the sole private party to the Standard Contracts for Spent Fuel Disposal and no other Person has or could reasonably be expected to assert any rights, directly or indirectly, to settlement or litigation proceeds in connection with the Contracts for Standard Spent Fuel Disposal applicable to the Nuclear Sites.
(e) There is no setoff amount, counterclaim, or other circumstance that would diminish or adversely affect the availability of settlement recoveries from the United States or the Department of Energy in connection with the Spent Fuel Settlement Agreement for damages incurred by the Company or one of its Subsidiaries. The Company or one of its Subsidiaries is the sole private party to the Spent Fuel Settlement Agreement and no other Person has or could reasonably be expected to assert any rights, directly or indirectly, to settlement or litigation proceeds in connection with the Spent Fuel Settlement Agreement for damages incurred by one of its Subsidiaries.
Appears in 1 contract
Sources: Transaction Agreement (Vistra Corp.)
Contracts. (a) Except (i) for this Agreement, (ii) for the Contracts filed no less than two (2) Business Days prior to the date hereof as exhibits to any the SEC Reports, (iii) for the Company Report, or Plans and Company Stock Plan and (iv) as set forth in Section 3.15 Schedule 3.8(a) of the Company Disclosure LetterSchedule, as of the date hereof, neither the Company nor any Company Subsidiary of its subsidiaries is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):that:
(i) contains covenants that materially restrict the ability of the Company or any of its subsidiaries to (x) engage in any business or compete in any business with any Person, (y) operate in any geographic area or (z) solicit or hire any employee or consultant;
(ii) other than with respect to a partnership that is wholly owned by the Company or any of its wholly-owned subsidiaries, is a joint venture, partnership, limited liability or other similar agreement or arrangement or relating to the formation, creation, operation, management or control of any partnership, joint venture, limited liability company or other similar agreements or arrangements or Contracts, in each case that is material to the business of the Company and its subsidiaries taken as a whole;
(iii) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or similar Contract pursuant to which any indebtedness of the Company or any of its subsidiaries, in each case in excess of $10,000,000, is outstanding or secured, other than any such Contract between or among any of the Company and any of its wholly-owned subsidiaries;
(iv) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its subsidiaries or prohibits the pledging of the capital stock of the Company or any subsidiary of the Company;
(v) has resulted in payments by the Company or any of its subsidiaries of more than $15,000,000 in the aggregate for the prior fiscal year or includes a binding commitment by the Company or any of its subsidiaries to make payments of more than $15,000,000 in the aggregate for each of fiscal years 2016 and 2017 (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business consistent with past practice that do not materially modify the terms of any underlying Contract pursuant to which such purchase orders are issued or Leases);
(vi) has resulted in payments to the Company or any of its subsidiaries of more than $5,000,000 in the aggregate for the prior fiscal year or includes a binding commitment from a third party to make payments to the Company or any of its subsidiaries of more than $5,000,000 in the aggregate for each of fiscal years 2016 and 2017 (other than this Agreement or purchase orders for the purchase of inventory and/or equipment in the ordinary course of business consistent with past practice that do not materially modify the terms of any underlying Contract pursuant to which such purchase orders are issued);
(vii) with respect to any acquisition and divestiture pursuant to which the Company or any of its subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $5,000,000;
(viii) is between the Company or any of its subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares, on the other hand, except for any Company Plan and any Contracts entered into on arm’s length terms in the ordinary course of business consistent with past practice;
(ix) involves the payment of royalties to, or receipt of royalties from, any Person (other than the Company or any of its subsidiaries) of more than $5,000,000 in the aggregate pursuant to a license that is material to the Company and its subsidiaries taken as a whole;
(x) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under of the Securities Act or disclosed by the Company on a Current Report on Form 8-K that has not been so filedfiled or incorporated by reference in the SEC Reports;
(iixi) each involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration under such Contract to of at least $5,000,000 individually, or $10,000,000 in the aggregate and under which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company its subsidiaries has outstanding rights or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeobligations thereunder;
(iiixii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to settlement, conciliation or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material similar Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right Governmental Entity pursuant to which the Company or any Company Subsidiary could be required to purchase of its subsidiaries has continuing obligations or sell, as applicable, any involving the payment of the foregoingmore than $5,000,000;
(viixiii) any Contract that requires the Company or any Company Subsidiary of its subsidiaries, directly or indirectly, to make any advance, loan loan, extension of credit or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiaryof its wholly-owned subsidiaries) in any such case which is in excess of Twenty-Five Million Dollars ($25,000,000)5,000,000;
(viiixiv) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by (x) contains “most favored nation” pricing provisions from the Company or any of its subsidiaries with any third party, or (y) grants exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights to any third party; or
(xv) is a license (other than an intercompany license between the Company Subsidiary and any of its subsidiaries or a license of Software that is generally commercially available on standard terms) with respect to any Intellectual Property, which license is material to the Company and its subsidiaries taken as a whole. Each Contract of the type described in this Section 3.8(a) and any Contract that contains “most favored nation” pricing provisions in favor of the Company or any of its subsidiaries with any third party or pursuant to which the Company or any Company Subsidiary has any continuing indemnificationof its subsidiaries is granted exclusive rights, guaranteerights of first refusal, rights of first negotiation or offer or similar rights is referred to herein as a “Material Contract”. For the purposes of this Section 3.8(a), “earnoutContract” shall mean a Contract or other contingent, deferred group or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess series of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)related Contracts.
(b) Except as would not have Each of the Material Contracts is valid and binding on the Company and each of its subsidiaries party 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, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any Material Contract expires or terminates in accordance with its terms and (ii) for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ix) each neither the Company nor any of its subsidiaries has received written 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 (except in accordance with the terms thereof), (y) there is a valid, binding and legally enforceable obligation no breach of or default under any Material Contract by the Company or one any of its subsidiaries and no event or condition has occurred that constitutes, or, with or without the lapse of time or the giving of notice or both, would constitute, a default thereunder by the Company Subsidiaries, as the case may be, andor any of its subsidiaries or, to the Knowledge knowledge of the Company, of the any other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties party thereto and (iiiz) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge knowledge of the Company, no other party to any such Company a Material Contract is (with or without notice or lapse of time, or both) in breach of or default thereunderunder such Material Contract. The Company has made available to Parent true correct and complete copies of each all Material Contracts, other than any Contract that contains “most favored nation” pricing provisions in favor of the Company Contract (includingor any of its subsidiaries with any third party or pursuant to which the Company or any of its subsidiaries is granted exclusive rights, for the avoidance rights of doubtfirst refusal, all material amendments, modifications, extensions, rights of first negotiation or renewals with respect thereto)offer or similar rights.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.11(a) of the Company Disclosure LetterLetter sets forth a correct and complete list, and the Company has made available to Parent correct and complete copies, of all Contracts (including all material amendments, modifications, extensions or renewals with respect thereto, but excluding all names, terms and conditions that have been visibly redacted in compliance with the terms of each such Contract or with applicable Legal Requirements governing the sharing of information) to which the Company is a party as of the date hereofof this Agreement (collectively, neither the “Company Contracts”):
(i) of the sort which, if the Company nor any Company Subsidiary is were a party toreporting company under the Exchange Act, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract would be required to be filed as an exhibit to any Company Report or listed in Section 3.15 report of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under promulgated by the Securities Act that has not been so filedSEC;
(ii) each Contract to which the Company or any Company Subsidiary is that contain a party that (a) restricts covenant restricting the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person or in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholegeographic area;
(iii) each Contract to which with any Affiliate of the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)Company;
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of which primarily relates to (A) the granting to the Company of any IP License in or to any Company Intellectual Property owned by a third party, with annual license fees of more than $50,000, or (B) the granting by the Company Subsidiaries to a third party of any IP License in excess or to any Company Intellectual Property, with annual license fees of Twentymore than $50,000, excluding “click-Five Million Dollars ($25,000,000) (other than Contracts wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or the terms of use or service for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)web site;
(v) each material Contract with respect relating to the creation, formation, governance or control of any material partnershipsjoint venture, joint ventures partnership or joint ownership arrangements other similar arrangement involving co-investment, collaboration or partnering with a third partiesparty;
(vi) each Contract that (A) relates to the acquisition of assets with a Governmental Entity (other than ordinary course Contracts with Governmental Entities as a customer);
(vii) pursuant to which any Indebtedness of the Company is outstanding or may be incurred or pursuant to which the Company has guaranteed any Indebtedness of any other Person (other than the Company and excluding Company trade payables arising in the ordinary course of business);
(viii) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required other party thereto has continuing obligations, rights or interests relating to purchase the research, development, clinical trial, distribution, supply, manufacture, marketing or sellco-promotion of, as applicableor collaboration with respect to, any of the foregoing;
(vii) any Contract that requires the Company product or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support product candidate for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company is currently engaged in research or any Company Subsidiary has any continuing indemnificationdevelopment, guarantee, “earnout” including manufacture or other contingent, deferred supply services or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of TwentyContracts with contract research organizations for clinical trials-Five Million Dollars ($25,000,000);related services; and
(ix) each Contract with a term exceeding one which are to any extent executory and relate to (1A) year after the date disposition or acquisition of this Agreement for future purchasesany material assets or properties, exchange other than dispositions or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) acquisitions in the aggregate after the date ordinary course of this Agreement business, or (B) any merger or other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)business combination transaction.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each Company Contract is a valid, valid and binding and legally enforceable obligation of on the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity ExceptionsException, (ii) each such Company Contract and is in full force and effect with respect to the Company effect, and the Company Subsidiaries, as has performed all obligations required to be performed by it before the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default date hereof under any such each Company Contract and, to the Knowledge of the Company, no each other party to any each Company Contract has (i) performed all obligations required to be performed by it before the date hereof under such Company Contract is Contract, except for such failures to be in compliance as would not, individually or in the aggregate, reasonably be expected to result in finding of material breach thereof, and (with ii) has not expressed to the Company an intention to repudiate, terminate or without notice or lapse of time, or bothnon-renew it.
(c) in breach or default thereunder. The Company has made available to Parent true and complete copies not received or enjoyed any benefit, inducement or incentive from any Governmental Entity which will, as a result of each this Agreement or the Transactions or the reduction of or (should it occur) cessation of the Company’s business operations in the geographic area where they are currently conducted or the reduction in force of or (should it occur) the termination of all or substantially all Company Contract (includingemployees, for the avoidance of doubtresult in any clawback, all material amendmentsrecapture, modificationsrecoupment, extensionsrepayment obligation, penalty, Tax or renewals with respect thereto)other such liability.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.12(a) of the Company Disclosure Letter, Schedule lists each and every of the following written contracts and agreements of the Company or its Subsidiaries as of the date hereof, neither hereof (such contracts and agreements being the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company ContractMaterial Contracts”):
(iA) each contract relating to the acquisition, transfer, development, sharing or license of any Contract required to be filed by material Owned Intellectual Property Rights (as defined below) and (B) a general description of the Company as a “material contract” pursuant to Item 601(b)(10) principal standard form customer contracts entered into in the ordinary course of Regulation S-K under the Securities Act that has not been so filedbusiness;
(ii) (A) each Contract contract relating to the employment of, or the performance of services by an executive officer of the Company; (B) each contract pursuant to which the Company or any of its Subsidiaries is or may become obligated to make any bonus or similar payment in excess of $200,000 to any current or former employee, consultant or director; and (C) each contract pursuant to which the Company or any of its Subsidiaries is or may become obligated to make any change-in-control payment to any current employee, consultant or director as a result of the execution and delivery of this Agreement and the transactions contemplated hereby;
(iii) each contract that provides for indemnification of any officer, director or employee or any other party, except for indemnities in the ordinary course of business;
(iv) each contract and agreement for the purchase or lease of personal property with any supplier or for the furnishing of services to the Company or any of its Subsidiaries with payments greater than $500,000 per year, other than purchase orders in the ordinary course and other than contracts or agreements that are terminable by the Company within 90 days or less;
(v) all leases and subleases of real property, other than those pursuant to which the Company or any of its Subsidiaries are required to make annual rental payments of less than $120,000;
(vi) all contracts and agreements that create indebtedness in amounts in excess of $500,000 (other than trade indebtedness or intercompany indebtedness) of the Company or any Subsidiary or place an encumbrance or lien on any material asset of the Company or any Subsidiary , including any contracts and agreements in which the Company or any Subsidiary is a party that guarantor of indebtedness in excess of $500,000;
(avii) restricts all contracts and agreements imposing any material restriction on the right or ability of the Company or any Company Subsidiary of its Subsidiaries to engage in any line of business;
(viii) all contracts and agreements relating to the voting and any rights or compete obligations of a stockholder of the Company;
(ix) all contracts regarding the acquisition, issuance or transfer of any securities of the Company or any Subsidiary, including, without limitation, any restricted stock agreements;
(x) any contract relating to currency or interest rate hedging or similar agreements requiring payments by or liability of the Company in excess of $100,000;
(xi) any business in any manner contract that is material to the Company and its Subsidiaries taken as a whole and which requires the consent, approval or waiver of or notice to, or payment of any consideration to, a third party, including in order to avoid termination of or a loss of a material benefit under any such contract, as a result of the consummation of the Merger; and
(xii) any agreement of guarantee, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any person and which obligations, liabilities or indebtedness are material to the Company Subsidiaries, and its Subsidiaries taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation contracts or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than licenses entered into in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation of on the Company or one of the Company Subsidiariesapplicable Subsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of on the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the effect. The Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) not in breach or violation of, or default under under, any such Company Material Contract and, to the Knowledge knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or violation thereof or default thereunder. The thereunder and there has occurred no event giving any right to other persons to terminate, amend or cancel any Material Contract, except as such breach, violation or default would not reasonably be expected to have a Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except for the Contracts this Agreement, agreements filed as exhibits to any the Company ReportSEC Documents, Company Benefit Plans or as set forth in Section 3.15 3.20 of the Company Disclosure Letter, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to, and none of their respective properties to or assets is expressly bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):contract that:
(i) any Contract required to be filed by the Company as is a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act that has not been so filedAct);
(ii) each Contract other than with respect to which any partnership that is wholly owned by the Company or any Company wholly owned Subsidiary is a party that (a) restricts the ability of the Company Company, relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any Company Subsidiary to engage in joint venture or compete in any business in any manner partnership that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other contract providing for or securing indebtedness for borrowed money or deferred payment (in each Contract to case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000;
(iv) is a settlement, conciliation or similar agreement (x) with any Governmental Authority or (y) which would require the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any of its Subsidiaries in excess to pay consideration of Fifty Million Dollars (more than $50,000,000) in the aggregate 1,000,000 after the date of this Agreement Agreement;
(other than v) is a lease for the Leased Real Property with annual lease payments in excess of $1,000,000;
(vi) (A) Contracts for transportation limits or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money purports to limit the right of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract Affiliates to engage or compete in any line of business or to compete with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) or operate in the aggregateany location, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal exclusivity obligations or similar right pursuant restrictions binding on and material to which the Company or any Company Subsidiary could of its Subsidiaries or that would be required to purchase binding on Parent or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person its Affiliates (other than the Company or any of its Subsidiaries) after the Closing, or (C) grants a most-favored nation status to any Person other than the Company Subsidiaryor any of its Subsidiaries, in a manner that is material to the business of the Company and its Subsidiaries, taken as a whole;
(vii) in excess relates to an acquisition or disposition of Twentyany business, or all or substantially all of the assets or capital stock of any other Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise) entered into at any time during the last five (5) years or otherwise containing ongoing performance or “earn-Five Million Dollars out” or contingent payment obligations of the Company or any of its Subsidiaries ($25,000,000which, for the avoidance of doubt, shall not include amounts to be released out of escrow);
(viii) is a contract under which the Company or any Contract entered into since January 1, 2016 of its Subsidiaries uses or has the right to use any Intellectual Property licensed from third parties that relates is material to the salebusiness of the Company and its Subsidiaries, transfer taken as a whole;
(ix) is an indemnification agreement of the Company or other disposition its Subsidiaries with any of a business their respective directors, officers or assets employees; or
(x) requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Company Subsidiary pursuant to which the Company of its Subsidiaries in an amount that individually or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after is greater than $2,000,000. Each Contract of the date of type described in this Agreement (other than Contracts solely between the Section 3.20(a) is referred to herein as a “Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Material Contract.”
(b) Except as would not have A true and complete copy of each Company Material Contract has been made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or would not reasonably be expected to havedefault under the terms of any Company Material Contract where such breach or default would, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to . To the Knowledge of the Company, no other party to any such Company Material Contract is (with in breach of or without notice or lapse default under the terms of time, or both) in any Company Material Contract where such breach or default thereunderwould, individually or in the aggregate, have a Company Material Adverse Effect. The Except as would not, individually or in the aggregate, have a Company has made available Material Adverse Effect, (x) each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, to Parent true and complete copies the Knowledge of the Company, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought and (y) neither the Company nor any of its Subsidiaries has received any written notice or claim of default under any Company Material Contract (includingor any written notice of an intention to terminate, for not renew or challenge the avoidance validity or enforceability of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Ancestry.com Inc.)
Contracts. (a) Except for As of the Contracts filed as exhibits to any Company Reportdate of this Agreement, or set forth in Section 3.15 none of the Company Disclosure Letter, as of the date hereof, neither the Company nor or any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed;.
(iib) Section 4.14(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies, of: (i) each Contract to which the Company or any of the Company Subsidiary Subsidiaries is a party that (a) restricts in any material respect the ability of the Company or any Company Subsidiary Subsidiaries to engage in or compete in any line of business or geographic area or market segment (including any license, collaboration, agency or distribution agreements); (ii) any Contract or series of related Contracts of the Company or any of the Company Subsidiaries (A) relating to Indebtedness, or (B) evidencing any guarantee of obligations of any Person in excess of $500,000, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (iii) each partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any manner entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the ordinary course of business or any Contract involving a sharing of revenues, profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any other Person; (iv) each Contract between the Company or any of its Subsidiaries, on the one hand, and, on the other hand, any (A) present executive, officer or director of either the Company or any of the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the shares of Company Common Stock outstanding as of the date hereof or (C) to the Knowledge of the Company, any affiliate of any such officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents; (v) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, if any material business or any material amount of assets; (vi) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act; (vii) any Contract that provides for any payments that are conditioned, in whole or in part, on a change of control of the Company or any Company Subsidiary; (viii) any material license, sublicense, option or other Contract relating to any Intellectual Property; (ix) any Contract that provides for any “most favored nation” provision or equivalent preferential pricing terms, exclusivity or similar obligations to which the Company or any Company Subsidiary is subject which is material to the Company and the Company Subsidiaries, Subsidiaries taken as a whole; (x) any management, (b) requires service, consulting or similar Contract that is material to the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business operation of the Company and the Company Subsidiaries, taken as a whole; (xi) any hedging, derivative or similar Contract (c) provides for “exclusivity,” rights of first refusal including interest rate, currency or offer or commodity swap agreements, cap agreements, collar agreements and any similar requirement Contract designed to protect a person against fluctuations in interest rates, currency exchange rates or right in favor of commodity prices); (xii) any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
Contracts (iiiA) each Contract to which between the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect Governmental Entity, except for sales to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than a Governmental Entity in the ordinary course of business) business or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than between the Company or any Company Subsidiary, as a subcontractor and any prime contractor, to any Governmental Entity; provided that the following Contracts shall not be required to be listed on Section 4.14(b) in excess of Twenty-Five Million Dollars the Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 4.14(b), and shall not be deemed a “Material Contract” for any purposes hereunder ($25,000,000);
whether or not a Filed Company Contract): (viii1) any Company Benefit Plan, (2) any Contract entered into since January 1between the Company, 2016 that relates to on the saleone hand, transfer and one or more Company Subsidiaries, on the other disposition of a business hand, or assets by the between one or more Company Subsidiaries, or (3) any Company Subsidiary pursuant to which the Company or Real Estate Lease (any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result such Contract in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one clauses (1) year after the date of through (3), an “Excluded Contract”). Each Contract described in this Agreement for future purchasesSection 4.14(b) and each Filed Company Contract, exchange or sales of gasin each case, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with Excluded Contract, is referred to herein as a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)“Material Contract”.
(bc) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy thereto and Equity Exceptions, (ii) each such Company Material Contract is in full force and effect with respect to effect. None of the Company and or any of the Company Subsidiaries, as the case may be, Subsidiaries has received any written claim of breach or default under or cancellation of any Material Contract and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any of the Company Subsidiary Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The To the Knowledge of the Company, neither the Company nor any Company Subsidiary has made available received, as of date of this Agreement, any written notice from any Person that such Person intends to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, terminate or renewals with respect thereto)not renew any Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Mocon Inc)
Contracts. (aA) Except for the Contracts that are filed as exhibits an exhibit to any a Filed Company ReportSEC Document, or set forth in Section 3.15 4.01(i) of the Company Disclosure LetterSchedule contains a complete and correct list, as of the date hereofof this Agreement, neither of each Contract described below in this Section 4.01(i)(A) under which the Company nor or any Company Subsidiary is a party toof its Subsidiaries has any current or future rights, and none responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is bound by any subject, in each case as of the following categories date of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):this Agreement:
(i) any each Contract required to be filed by which the Company as or any of its Subsidiaries is a “material contract” pursuant party that restricts the ability of the Company or any of its Subsidiaries to Item 601(b)(10(A) of Regulation S-K under compete with any person in any area or (B) engage in any activity or business in connection with the Securities Act that has not been so filedCovered Products or the Covered Platforms;
(ii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party that (ax) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides providing for “exclusivity,” rights of first refusal or offer exclusivity or any similar requirement or right pursuant to which the Company or any of its Subsidiaries is restricted in favor any way with respect to the research, development, testing, distribution, sale, supply, license, marketing, promotion, co-promotion or manufacturing of the Covered Products or Covered Platforms or (y) which after the Effective Time would restrict Parent or any third party that restricts of its Subsidiaries in any material respect with respect to the business products of Parent or any of its Subsidiaries that have been commercialized or are in Phase II or Phase III clinical development (or the Company and foreign equivalent thereof) in the Company Subsidiaries, taken as a wholeUnited States or any foreign jurisdiction with respect to any clinical indication of such product;
(iii) each Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party granting the other party to such Contract or a third party “most favored nation” pricing or terms that provides for payments (1) applies or apply to or from the Company or any of its Subsidiaries in excess or (2) following the Effective Time, would apply to Parent or any of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (its Subsidiaries other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)the Surviving Corporation;
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of to which the Company or any of its Subsidiaries is a party containing any “non-solicitation”, “no-hire” or similar provision, in each case, which provision (1) restricts the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Subsidiaries in soliciting, hiring, engaging, retaining or employing current or former employees of, or providers of material services to, any of the entities set forth in Section 4.01(i)(A)(iv)(x) of the Company Disclosure Schedule or (2) restricts the Company or any of its Subsidiaries or between the wholly-owned Company Subsidiaries)in any other material respect;
(v) each material Contract to which the Company or any of its Subsidiaries is a party with respect to the creation, formation, governance or control any beneficial owner of any material partnershipsshares of Company Common Stock, joint ventures or joint ownership arrangements with third partiessecurities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any shares of Company Common Stock, (1) where such Contract provides for consideration payable to such beneficial owner or any of its affiliates as a result of the tender of the shares of Company Common Stock beneficially owned by such beneficial owner in the Offer or (2) where the amount payable under such Contract is calculated based on the number of shares of Company Common Stock tendered, or to be tendered, in the Offer by such beneficial owner;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries is a party containing any standstill provisions which in any respect limits (1) the ability of any person to acquire the securities or assets of the Company Subsidiary could be required to purchase or sell, as applicable, any of its Subsidiaries or (2) the foregoing;ability of the Company or any of its Subsidiaries to acquire the securities or assets of any person; and
(vii) any except for the Contracts described above, each material Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result of its Subsidiaries is a party not made in aggregate payments in excess the ordinary course of Twenty-Five Million Dollars ($25,000,000);business consistent with past practice.
(ixB) The Company has made available to Parent a complete and correct copy of each Contract with a term exceeding one (1of the Contracts referred to in Sections 4.01(i)(A), 4.01(p)(v) year after and 4.01(q). Except as disclosed in the Filed Company SEC Documents, as of the date of this Agreement for future purchaseshereof, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between neither the Company and nor any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with party to, and none of their respective properties or other assets is subject to, any Contract that is of a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between nature required to be filed as an exhibit to a report or filing under the Company Securities Act or the Exchange Act and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company rules and regulations promulgated thereunder. Each Contract is a valid, binding and legally enforceable obligation of the Company or one any of its Subsidiaries that is required to be set forth on Section 4.01(i), 4.01(p)(i)(v) or 4.01(q) of the Company SubsidiariesDisclosure Schedule or required to be filed as an exhibit to the Filed Company SEC Documents (a “Material Contract”) is in full force and effect (except for those Contracts that have expired or have been terminated in accordance with their terms) and is a legal, valid and binding agreement of the Company or its Subsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to enforceable against the Company and the Company Subsidiariesor such Subsidiary, as the case may be, and and, to the Knowledge knowledge of the Company, each other party thereto, in each case, in accordance with its terms, except for such failures to be in full force and effect or to be legal, valid, binding or enforceable that, individually or in the other parties thereto aggregate, have not had and (iii) none would not reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries has performed or any Company Subsidiary is performing all obligations required to be performed by it under the Material Contracts and is not (with or without notice or lapse of time, or both) in breach or default under thereunder, and has not waived or failed to enforce any such Company Contract rights or benefits thereunder, and, to the Knowledge knowledge of the Company, no other party to any such Company Contract of the Material Contracts is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company , and there has made available occurred no event giving to Parent true and complete copies others (with or without notice or lapse of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensionstime, or renewals with respect thereto)both) any right of termination, amendment or cancellation of any Material Contract or any license thereunder, except for, in each case, any such failures to perform, breaches, defaults, waivers, failures to enforce or events that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Medarex Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 2.13 of the Company Disclosure Letter, as of the date hereofSchedule, neither the Company nor any Company Subsidiary is a party toto or bound by:
(a) any employment or consulting agreement, and none of their respective properties contract or assets is bound commitment with any officer, director or employee, other than those that are terminable by Company or Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company or Subsidiary;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the following categories benefits of Contracts (each such Contract required to which will be filed as an exhibit to increased, or the vesting of benefits of which will be accelerated, by the occurrence of any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) transactions contemplated by this Agreement or the value of any Contract required to of the benefits of which will be filed calculated on the basis of any of the transactions contemplated by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedthis Agreement;
(iic) each Contract to which the Company any agreement of indemnification or any Company Subsidiary is a party that (a) restricts guaranty other than any agreement of indemnification entered into in connection with the ability sale or license of software or hardware products in the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business ordinary course of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholebusiness;
(iiid) each Contract any agreement, contract or commitment currently in force relating to which the disposition or acquisition by Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each a material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition amount of assets (other than not in the ordinary course of business) business or capital stock pursuant to which Company or Subsidiary has any material ownership interest in any corporation, partnership, joint venture or other securities business enterprise;
(by mergere) any mortgages, capital contribution indentures, guarantees, loans or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregatecredit agreements, (B) relates security agreements or other agreements or instruments relating to the disposition borrowing of money by Company or Subsidiary or extension of credit to Company or Subsidiary;
(other than in the ordinary course of businessf) after any settlement agreement entered into within three (3) years prior to the date of this Agreement, directly ;
(g) any contracts or indirectly, of assets of the agreements that limit or restrict Company or Subsidiary, or to Company's knowledge, any of its officers or key employees, from engaging in any business and any contracts or agreements that limit or restrict anyone other than Company's or Subsidiary's employees or consultants from competing with Company or Subsidiary;
(h) any contract, agreement or commitment requiring Company or Subsidiary to register the Company Subsidiaries with a total consideration resale of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any its capital stock or other securities under federal or state securities laws;
(i) any powers of attorney or comparable delegations of authority granted by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries Subsidiary;
(j) any contract or commitment for capital expenditures having a remaining balance in excess of $50,000;
(Ck) contains a putany lease with respect to any property, callreal or personal, right whether as lessor or lessee;
(l) any contract, agreement or commitment with any director, officer or stockholder of first refusal or similar right pursuant to which the Company or Subsidiary;
(m) any Company Subsidiary could be required to purchase contract, agreement or sellundertaking not terminable without penalty, as applicablecost or liability on notice not exceeding 30 days;
(n) any contract, agreement or commitment that calls for the sale of any of the foregoingproperty or assets of, or calls for the acquisition of property or assets by, Company or Subsidiary exceeding $50,000;
(viio) in addition to the foregoing, any Contract that requires the Company or any Company Subsidiary to make any advanceother agreement, loan contract or commitment therefor that involves a commitment or provide any credit support for liability or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars $50,000; or
($10,000,000p) any other material agreement, contract or commitment of any kind. Neither Company nor Subsidiary, nor to Company's knowledge any other party to a Company Contract (other than Contracts solely between as defined below), is in breach, violation or default under, and neither Company nor Subsidiary has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or Subsidiary is a party or by which it is bound that are required to be disclosed in the Company and Schedule (any of its wholly-owned Subsidiaries such agreement, contract or solely among its wholly owned Subsidiaries).
(bcommitment, a "Company Contract") Except in such a manner as would not have permit any other party to cancel or terminate any such Company Contract, or would not reasonably be expected permit any other party to haveseek material damages or other remedies (for any or all of such breaches, individually violations or defaults, in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 1 contract
Sources: Merger Agreement (MSC Software Corp)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 4.13(a) of the Company Disclosure LetterSchedule sets forth, as of the date hereof, neither the Company nor a true, correct and complete list of each Contract (other than any Company Subsidiary Real Property Lease or Benefit Plan) that is a party to, in effect and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party or which binds their respective properties or assets, and that falls within any of the following categories:
(ai) restricts any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the ability SEC);
(ii) any Contract that grants “most favored nation” or “most favored customer” status to any Person in each case that is material to the Company or any Company Subsidiary, taken as a whole;
(iii) any Contract entered into since the Applicable Date (A) relating to the disposition or acquisition of assets by the Company or any Company Subsidiary with a value greater than $500,000; or (B) pursuant to engage in which the Company or compete any Company Subsidiary acquired or will acquire any ownership interest in any other Person or other business in enterprise other than the Company or any manner Company Subsidiary that is material to the Company and the Company Subsidiaries, taken as a whole;
(iv) any joint venture, partnership, strategic alliance or similar Contract with a third party;
(bv) requires the Company or any Company Subsidiary to conduct Contract that contains any business on a “most favored nations” basis with any third party that restricts covenant limiting in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets ability of the Company or the Company Subsidiaries to engage in any line of business or compete with a total consideration of more than Twenty-Five Million Dollars any Person, in each case, in any geographic area;
($25,000,000vi) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) Contract relating to Indebtedness of the Company or any Company Subsidiary in an initial principal amount in excess of five million dollars ($5,000,000), other than any such Contract solely between the Company Subsidiaries or any Company Subsidiary, on the one hand, and any other Company Subsidiary, on the other hand;
(Cvii) contains any Contract mortgaging, pledging or otherwise granting any Person a putLien on any material portion of equity or assets of the Company or any Company Subsidiary;
(viii) any contract providing for indemnification of any officer, calldirector or employee of the Company or any Company Subsidiary with respect to service in such capacities, right of first refusal or similar right other than Contracts entered into on substantially the same form as the Company’s standard forms;
(ix) any Contract (A) pursuant to which the Company or any Company Subsidiary could be required to purchase or sellreceives a license, as applicableright, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution toconsent, or other investment incovenant not to assert, under or with respect to any Person material Intellectual Property (other than the Company or any Company Subsidiary) in excess of Twentylicenses for open source, “off-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer the-shelf” or other disposition Software widely available on generally standard terms and conditions for a one-time or annual fee (whichever is higher) of a business no more than $200,000) or assets by the Company or any Company Subsidiary (B) pursuant to which the Company or any Company Subsidiary has grants to a third party a license, right, consent, or covenant not to assert, under or with respect to any continuing indemnificationIntellectual Property (other than non-exclusive licenses granted to customers in the ordinary course of business consistent with past practices that do not permit further resale or distribution) (each such Contract described in (A) and (B), guarantee, an “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000IP License”);
(ixx) each any Labor Agreement;
(xi) any Contract with providing for preferential purchase rights, consents to assignment, or similar transfer restrictions that will be triggered as a term exceeding one (1) year after result of the date of entry into this Agreement for future purchasesor the consummation of the Offer and the Merger;
(xii) all bonds, exchange letters of credit, guaranties and other similar credit support instruments that are maintained by Company or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries Affiliates with any Governmental Entity or solely among its wholly owned Subsidiariesother Person with respect to the Mineral Interests;
(xiii) any contracts, operating agreements, sales agreements, or other agreements, in each case materially affecting the amounts of royalty payments or other payments to which the Company is entitled in relation to the Mineral Interests (excluding pooling authorizations, production sharing agreements, allocation agreements, division orders, and similar agreements relating to the division of proceeds of production); and
(xxiv) each any Contract with a term exceeding one (1not otherwise set forth in Section 4.13(a) year after of the date of this Agreement which is a financial derivative interest rate hedge with a value Company Disclosure Schedule that obligates the Company or any Company Subsidiary for payments in excess of Ten Million Dollars $50,000 annually. Each Contract of the type described in this Section 4.13(a) is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof have been made available to Parent ($10,000,000including pursuant to agreed-upon procedures to protect competitively sensitive information) (other than Contracts solely between or publicly filed with the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)SEC.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid, binding and legally enforceable obligation of the Company or one the Company Subsidiary party thereto and is in full force and effect (except as may be limited by the Enforceability Exceptions); (ii) none of the Company, any Company Subsidiaries, as the case may be, andSubsidiary or, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract any counterparty is in full force and effect with respect to the breach or default under any Company and the Company Subsidiaries, as the case may be, and Material Contract; (iii) to the Knowledge of the Company, the other parties thereto no event has occurred, and (iii) none of the Company no circumstances or any Company Subsidiary is condition exists, that (with or without notice or lapse of time) would be reasonably expected to result in the termination of any Company Material Contract and (iv) since the Applicable Date, or both) in breach or default under any such Company Contract and, to the Knowledge none of the Company, no other party to Company or any such Company Contract is (with or without Subsidiary has received any notice or lapse communication regarding any termination of time, or both) in breach or default thereunder. The any Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Sources: Merger Agreement (PHX Minerals Inc.)
Contracts. (ai) Except for this Agreement, the Contracts material contracts attached to the Company Reports filed prior to the date of this Agreement, the Company Benefit Plans and as exhibits to any Company Report, or set forth in on Section 3.15 6.1(u)(i) of the Company Disclosure LetterSchedule, as of the date hereof, neither the no Acquired Company nor any Company Subsidiary is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item (as such term is defined in item 601(b)(10) of Regulation S-K under of the Securities Act that has not been so filed;SEC).
(ii) each Contract to which Except as set forth on Section 6.1(u)(ii) of the Company or any Disclosure Schedule, no Acquired Company Subsidiary is a party that to or bound by:
(aA) restricts any Contract: (1) relating to the ability employment of, or the performance of services by, any employee or consultant (other than offer letters with employees providing for “at will” employment terminable on 10 days’ notice or less in the form used by an Acquired Company in the ordinary course of business consistent with past practices); (2) pursuant to which any of the Acquired Companies is or may become obligated to make or provide any severance, termination, change in control or similar payment or benefit to any current or former employee, independent contractor, consultant or director of or to any of the Acquired Companies (each, a “Company Associate”); or (3) pursuant to which any of the Acquired Companies is or may become obligated to make any bonus or similar payment (other than payments constituting base salary) in excess of $100,000 to any Company Subsidiary Associate;
(B) any collective bargaining, union or works council agreements;
(C) any Contract containing any covenant (1) limiting in any respect the right of any Acquired Company (or, after the Effective Time, Parent or its Subsidiaries) to engage in any type or line of business or compete with any Person in any type or line of business or to compete with any Person or the manner or locations in which any manner that is material to the Company and the Company Subsidiaries, taken as a wholeof them engage, (b2) requires the Company granting any exclusivity rights or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts status that, following the Merger, would in any material respect the business way apply to Parent or any of the Company and the Company its Subsidiaries, taken as a wholeincluding the Acquired Companies, or (c3) provides for “exclusivity,” rights of first refusal otherwise prohibiting or offer or any similar requirement or limiting the right in favor of any third party that restricts in Acquired Company to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any material respect Intellectual Property owned by any Acquired Company;
(D) any defined benefit pension plan under which an Acquired Company has or may have any obligations or liability;
(E) any Contract relating to the acquisition, development, sale or disposition of any business unit or Intellectual Property of any Acquired Company;
(F) any Contract which contains a “clawback” or similar undertaking requiring the Company and reimbursement or refund of any fees (whether performance based or otherwise) paid to the Company SubsidiariesAcquired Companies;
(G) any Contract which is a mortgage, security agreement, capital lease or similar agreement, in each case, that creates or grants a Lien on any property or assets that are material to the Acquired Companies, taken as a whole;
(iiiH) each Contract to which the Company any partnership, joint venture or any Company Subsidiary is a party that provides for payments to other similar agreement or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect arrangement relating to the formation, creation, formationoperation, governance management or control of any material partnerships, joint ventures partnership or joint ownership arrangements with third partiesventure;
(viI) each any Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, call or other right of first refusal acquisition or similar right disposition pursuant to which the any Acquired Company or any Company Subsidiary could be required to purchase or sell, as applicable, (1) any equity interests (including licensing or leasehold interests) of any Person or (2) assets, in the case of this clause “(2)” involving revenues or expenses of the foregoingAcquired Companies of more than $500,000;
(viiJ) any Contract for borrowed money (whether current, short-term or long-term and whether secured or unsecured, or any financial guarantee) incurred by the Acquired Companies or pursuant to which the Acquired Companies has any obligations as guarantor, surety, co-signer, endorser or co-maker in respect of any obligation of any Person, or any capital maintenance, keep well or similar agreements or arrangements, other than (1) Contracts solely among the Company or any of its wholly owned Subsidiaries and/or (2) Contracts not involving amounts in excess of $250,000;
(K) any Contract that requires the Company restricts payment of dividends or any Company Subsidiary distributions in respect of the equity interests of the Acquired Companies;
(L) any Contract pursuant to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, which the Acquired Companies have continuing material indemnification obligations or other investment in, contingent payments to any Person (other than the Company or any Company Subsidiary) that would reasonably be expected to result in payments in excess of Twenty$500,000, except for (1) any vendor or content licensing Contract entered into in the ordinary course of business or (2) non-Five Million Dollars disclosure agreements;
($25,000,000M) any Contract, except for this Agreement, relating to the acquisition or disposition of any business or securities by Acquired Companies (whether by merger, sale of shares, sale of assets or otherwise) or pursuant to which any material earn-out, deferred or contingent payment obligations remain outstanding (excluding any such Contract for which all such rights and obligations have been satisfied);
(viiiN) any Contract entered into since January 1, 2016 2015 involving any resolution or settlement of any actual or threatened Legal Proceedings (1) with a value of greater than $500,000 or (2) which imposes material continuing obligations on the Acquired Companies or that relates provides for any continuing injunctive or other non-monetary relief, in each case, other than confidentiality obligations;
(O) (1) any Contract pursuant to which any Acquired Company has been granted any option, license or similar right relating to the sale, transfer or other disposition Intellectual Property of a third party, in each case that is material to the business or assets by of the Company Acquired Companies, taken as a whole (but excluding any non-exclusive “click-through” or similar end-user license for commercially available software), and (2) any Company Subsidiary Contract pursuant to which any option, license or similar right relating to any Intellectual Property owned by any Acquired Company has been granted to a third party, in each case that is material to the Company business or assets of the Acquired Companies, taken as a whole (but excluding any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected non-exclusive licenses granted to result customers in aggregate payments in excess the ordinary course of Twenty-Five Million Dollars ($25,000,000business);
(ixP) each Contract any confidentiality agreements or standstill agreements with a term exceeding one any third party (1or any agent thereof) year that contains any exclusivity or standstill provisions that are or will be binding on any Acquired Company or, after the date Effective Time, Parent or any of this Agreement for future purchasesits Subsidiaries (including the Acquired Companies);
(Q) any other Contract (or group of related Contracts), exchange the performance of which requires aggregate payments to or sales of gasfrom the Acquired Companies during fiscal year ended December 31, oil or electric energy 2017 in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and500,000;
(xR) each any other Contract, if a breach of such Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to havecould, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, ; or
(iS) each Company any Contract is a valid, binding and legally enforceable obligation (1) with any Affiliate of the Company or one of the (other than its Subsidiaries and other than any Contract related to a Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity ExceptionsPerformance Award), (ii2) each with a Governmental Entity (other than ordinary course Contracts with (x) U.S. Governmental Entities and (y) non-U.S. Governmental Entities as a customer), or (3) containing a standstill or similar agreement pursuant to which any Acquired Company has agreed not to acquire assets or securities of another Person (the Contracts described in Section 6.1(u)(i) and clauses (A) – (S) of this Section 6.1(u)(ii), together with all exhibits and schedules to such Company Contract is in full force and effect with respect to the Company Contracts and the Specified Company SubsidiariesContracts, as collectively the case may be, and to the Knowledge of the Company, the other parties thereto and “Material Contracts”).
(iii) none The Company has made available to Parent an accurate and complete copy of each Material Contract.
(iv) No Acquired Company is in material breach of, or default under, the Company or terms of any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to Contract. To the Knowledge of the Company, no other party to any such Company Contract is in material breach of or default under the terms of such Company Contract. To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (A) result in a material violation or breach of any of the provisions of any Company Contract; (B) give any Person the right to declare a material default or exercise any remedy under any Company Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate the maturity or performance of any Company Contract that constitutes a Material Contract; or (E) give any Person the right to cancel, terminate or modify any Company Contract that constitutes a Material Contract. Since January 1, 2017, none of the Acquired Companies has received any notice or other communication regarding any actual or possible violation or breach of, or bothdefault under, any Material Contract.
(v) Each of the Company Contracts is a valid and binding obligation of the Acquired Company which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect, subject to the Bankruptcy and Equity Exception.
(vi) Each of the Specified Company Contracts is a valid and binding obligation of the Acquired Company which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect, subject to the Bankruptcy and Equity Exception. No Acquired Company is in material breach of, or default thereunderunder, the terms of any Specified Company Contract. The Company has made available To the Knowledge of the Company, no other party to Parent true and complete copies of each any Specified Company Contract is in material breach of or default under the terms of such Specified Company Contract. To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (includingwith or without notice or lapse of time) could reasonably be expected to: (A) result in a material violation or breach of any of the provisions of any Specified Company Contract; (B) give any Person the right to declare a material default or exercise any remedy under any Specified Company Contract; (C) give any Person the right to receive or require a rebate, for chargeback, penalty or change in delivery schedule under any Specified Company Contract; (D) give any Person the avoidance right to accelerate the maturity or performance of doubtany Specified Company Contract; or (E) give any Person the right to cancel, all material amendmentsterminate or modify any Specified Company Contract. Since January 1, modifications2017, extensionsnone of the Acquired Companies has received any notice or other communication regarding any actual or possible violation, termination, cancellation, nonrenewal, nonextension or breach of, or renewals with respect thereto)default under, any Specified Company Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in on Section 3.15 4.13 of the Company Disclosure Letter, Schedule or as of set forth in an SEC Report filed by the Company prior to the date hereofof this Agreement, neither the Company nor any Company the BD Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
: (i) with respect only to the BD Subsidiary, any Contract required relating to be filed by indebtedness for borrowed money or any guaranty of the indebtedness of another Person not a Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
Subsidiary; (ii) each any Contract to which the Company or any Company Subsidiary is a party that (a) restricts materially limits the ability of the Company or any Company BD Subsidiary to engage in or compete in any business line or in any manner geographic area; (iii) any Contract relating to the Business and material to the BD Subsidiary that is terminable by the other party or parties upon a change in control of the BD Subsidiary; (iv) any Contract relating to the Business that involves required future expenditures or guaranteed receipts by the Company or the BD Subsidiary of more than $50,000 in any one-year period or more than $250,000 in the aggregate; (v) any Contract relating to the Business for the lease of real property; (vi) any Contract with respect to any Intellectual Property or System that is material to the Company and or the Company Subsidiaries, taken as a whole, BD Subsidiary in connection with the Business; (bvii) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business Employment Agreement involving compensation of an employee of the Company and BD Subsidiary for any period in excess of $50,000; (viii) any Contract that by its terms limits the Company Subsidiaries, taken as a whole, payment of dividends or other distributions by the BD Subsidiary; (cix) provides for “exclusivity,” rights any joint venture or partnership agreement relating to the Business; (x) any Contract that grants any right of first refusal or right of first offer or any similar requirement right or right in favor that limits or purports to limit the ability of the BD Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any third party that restricts in material amount of assets or business (including with respect to the BD Subsidiary any material Contract containing any non-competition, non-solicitation or most favored nations provisions) or with respect to the business Company limits or purports to limit the ability of the Company and to own, operate, sell, transfer, pledge or otherwise dispose of the Company SubsidiariesBusiness; (xi) with respect to only the BD Subsidiary, taken as a whole;
any material agency, broker, sale representative, marketing or similar Contract; (iiixii) each any Contract to which the Company or any Company Subsidiary is a party that provides providing for payments to or from by any Person based on sales, purchases, or profits in connection with the Business, other than direct payments for goods or commissions to sales representatives, (xiv) any power of attorney or any other agreement entered into by the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy BD Subsidiary that is currently effective and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect that grants authority to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets act on behalf of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries BD Subsidiary; or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(viixv) any Contract that requires between the Company BD Subsidiary and any director, officer, Material Stockholder or any Company Affiliate of the BD Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guaranteecollectively, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned SubsidiariesMaterial Contracts”).
(b) Except as would not True and correct copies of each Material Contract have or would not reasonably be expected been made available to have, individually or in the aggregate, a Company Buyer.
(c) Each Material Adverse Effect, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation arrangement of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy BD Subsidiary and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to effect, and except as set forth in Section 4.13(c) of the Company and the Company SubsidiariesDisclosure Schedule, as the case may be, and to the Knowledge none of the Company, the other parties thereto and (iii) none of the Company or any Company BD Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge of the Company’s Knowledge, no any other party to thereto is in default or breach in any material respect under the terms of any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Sources: Purchase Agreement (Terra Nova Financial Group Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Reportthe Filed SEC Documents, or set forth in Section 3.15 none of the Company Disclosure Letter, as or any of the date hereof, neither the Company nor any Company Subsidiary its subsidiaries is a party toto or bound by, and none of their respective properties or assets is are bound by or subject to, any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report written or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):oral:
(i) any material Contract required not made in the ordinary course of business entered into prior to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) date of Regulation S-K under the Securities Act that has not been so filedthis Agreement;
(ii) each Contract pursuant to which the Company or any of its subsidiaries has agreed not to compete with any person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(iii) Contract pursuant to which the Company Subsidiary or any of its subsidiaries is restricted in any material respect in the development, marketing or distribution of their respective products or services (other than (A) restrictions on the scope of a party license granted to the Company, (B) restrictions entered into in the ordinary course of business consistent with past practice prior to the date of this Agreement and (C) restrictions that would not (awithout any action by Parent or its subsidiaries to assume such restriction) restricts in any way apply to Parent or any of its subsidiaries (other than the ability Company and its subsidiaries) following the Merger);
(iv) Contract with (A) any affiliate of the Company or any Company Subsidiary to engage in of its subsidiaries or compete in (B) any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires current or former director or officer of the Company or any of its subsidiaries or of any affiliate of the Company Subsidiary to conduct or any business on a “of its subsidiaries or any of the 25 most favored nations” basis with any third party that restricts in any material respect the business highly compensated employees of the Company and the Company Subsidiariesits subsidiaries, taken as a whole, or (cC) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor affiliate of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement such person (other than (Au) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services saleswith DP Applications (as defined in Section 3.01(x)), (Bv) Contracts contracts on arm's-length terms with companies whose common stock is publicly traded, (w) employment agreements referred to in Section 3.01(k), (x) offer letters providing solely for future purchases"at will" employment, exchange or sales (y) invention assignment and confidentiality agreements relating to the assignment of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of inventions to the Company or any of its subsidiaries not involving the Company Subsidiaries payment of money and (z) Benefit Plans referred to in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company SubsidiariesSection 3.01(n));
(v) each material Contract with respect to the creation, formation, governance license or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets franchise (other than exclusive distribution agreements entered into in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement business consistent with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates past practice prior to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of ) granted by the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right such subsidiary pursuant to which the Company or such subsidiary has agreed to refrain from granting license or franchise rights to any other person;
(vi) Contract under which the Company Subsidiary could be required to purchase or sellsuch subsidiary has (i) incurred any indebtedness that is currently owing or (ii) given any guarantee in respect of indebtedness, as applicable, any in each case having an aggregate principal amount in excess of the foregoing$5,000,000;
(vii) any material Contract that requires consent, approval or waiver of or notice to a third party in the event of or with respect to a transaction such as the Merger, including in order to avoid termination of or a loss of material benefit under any such Contract;
(viii) material Contract providing for payments of royalties to third parties;
(ix) Contract granting a third party any license to Intellectual Property that is not limited to the internal use of such third party;
(x) Contract providing confidential treatment by the Company or such subsidiary of third party information other than non-disclosure agreements and provisions entered into by the Company in the ordinary course of business consistent with past practice;
(xi) Contract granting the other party to such Contract or a third party "most favored nation" status that, following the Merger, would in any Company Subsidiary way apply to make any advance, loan or commitment therefor or provide any credit support for Parent or any capital contribution to, or other investment in, any Person of its subsidiaries (other than the Company and its subsidiaries and their products or services (other than any similar products or services produced or offered by Parent or its subsidiaries (other than the Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000and its subsidiaries)));
(viiixii) any Contract entered into since January 1that guarantees or warrants a result or that expressly guarantees or warrants that the products and/or services of the Company will be Year 2000 Ready (as defined in Section 3.01(m)), 2016 that relates to except insofar as the sale, transfer Company's or other disposition its subsidiaries' sole obligation in respect of a business breach of such guarantee or assets Warranty is the repair or replacement of the Company's or its subsidiaries' products; and
(xiii) Contract which (i) has aggregate future sums due from the Company or such subsidiary in excess of $2,500,000 and is not terminable by the Company or any Company Subsidiary pursuant such subsidiary for a cost of less than $250,000 or (ii) is entered into prior to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in and is otherwise material to the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation business of the Company or one such subsidiary or as presently conducted or as proposed to be conducted. Each Contract of the Company Subsidiariesand its subsidiaries is in full force and effect and is a legal, valid and binding agreement of the Company or such subsidiary and, to the knowledge of the Company or such subsidiary, of each other party thereto, enforceable against the Company or any of its subsidiaries, as the case may be, and, to the Knowledge knowledge of the Company, of against the other party or parties thereto, subject in all respects each case, in accordance with its terms, except for such failures to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is be in full force and effect with respect or enforceable that individually or in the aggregate are not reasonably likely to have a material adverse effect on the Company. Each of the Company and the Company Subsidiariesits subsidiaries has performed or is performing all material obligations required to be performed by it under its Contracts and is not (with or without notice or lapse of time or both) in breach or default in any material respect thereunder, as the case may beand, and to the Knowledge of the Company, the other parties thereto and (iii) none knowledge of the Company or such subsidiary, no other party to any Company Subsidiary of its Contracts is (with or without notice or lapse of time, time or both) in breach or default in any material respect thereunder except, in each case, for such breaches that individually or in the aggregate are not reasonably likely to have a material adverse effect on the Company. Neither the Company nor any of its subsidiaries knows of any circumstances that are reasonably likely to occur that could reasonably be expected to materially adversely affect its ability to perform its obligations under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Contract.
Appears in 1 contract
Sources: Merger Agreement (Sequent Computer Systems Inc /Or/)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the The Company Disclosure Letter, Schedule sets forth a complete and correct list as of the date hereof, neither of this Agreement of all of the following Contracts to which the Company nor or any Company Subsidiary of its Subsidiaries is a party to, and none of their respective properties or assets is bound by under which the Company or any of its Subsidiaries may be liable, excluding any Contract which the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 loss of the Company Disclosure Letterbenefits of which would not be material, a “Company Contract”):but including, without limitation:
(i) any Contract required to be filed by with any director, officer or employee of the Company as a “material contract” pursuant to Item 601(b)(10) or any of Regulation S-K under the Securities Act that has not been so filedits Subsidiaries;
(ii) each any Contract to which that, after the Closing, will restrict the conduct of any line of business by the Company or any Company Subsidiary is a party that (a) restricts of its Subsidiaries in any material respect or upon consummation of the transactions contemplated hereby will materially restrict the ability of the Company or any Company Subsidiary to engage in or compete of its Subsidiaries from engaging in any line of business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholewhich they may lawfully engage;
(iii) each any Contract to which the Company or with a labor union (including any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇collective bargaining agreement);
(iv) each principal any Contract creating(other than Benefit Plans) not otherwise disclosed pursuant to this Section 3.1(m) calling for annual payments aggregating more than $500,000, guaranteeing whether payable by or securing Indebtedness for borrowed money of to the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material any Contract with respect to the creation, formation, governance which includes or control constitutes a power of any material partnerships, joint ventures or joint ownership arrangements with third partiesattorney;
(vi) each Contract any contract that (A) relates is a settlement, conciliation or similar agreement pursuant to which the acquisition Company will be required, as or of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the execution date of this Agreement with a total to pay consideration in excess of more than Twenty-Five Million Dollars $100,000;
($25,000,000vii) in the aggregateany partnership, joint venture or other similar Contract; and
(Bviii) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets any license agreement granting Intellectual Property rights of the Company or to any third party and all license agreements granting Intellectual Property rights of any third party to the Company Subsidiaries (except for computer software licenses for commercially available, off-the-shelf software with a total consideration replacement cost and/or annual license fee of more less than Twenty-Five Million Dollars $10,000), in each case identifying the subject Intellectual Property.
(ix) any Contract for financing or funding relating to the securing or borrowing of money in an amount in excess of $25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right 500,000 pursuant to which the Company or any Company Subsidiary could be required to purchase of its Subsidiaries is the obligor or sell, as applicable, any guarantor. All of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary foregoing are collectively referred to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchasesas the “Material Contracts.” Each Material Contract is valid, exchange or sales of gaslegal, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between binding and enforceable against the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which Subsidiary that is a financial derivative interest rate hedge party thereto in accordance with its terms. There does not exist under any Material Contract any default or condition or event that, after notice or lapse of time or both, would constitute a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between default on the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation part of the Company or one of the Company Subsidiaries, as the case may be, andits Subsidiary or, to the Knowledge of the Company, on the part of the any other parties theretoto such Material Contracts, subject except for such defaults, conditions or events that would not reasonably be expected to result in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of a Material Adverse Effect on the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true correct and complete copies copy of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Airxcel Inc)
Contracts. Schedule 4.12 contains a true and complete list of all Executory Contracts of the following types to which (a) Except for the Contracts filed as exhibits to any Company Report, Seller or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Skyware is a party to, and none of their respective properties (but only if such Contract primarily relates to the Business) or assets is bound by (b) any of the following categories Assets or Skyware Assets is subject:
(a) any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distribution or promotional activities for or on behalf of the Business, or any Contract to act in one of the foregoing specified capacities on behalf of any Person;
(b) any Contract pursuant to which any Seller or Skyware has made or will make loans or advances, or has incurred, or is obligated to incur, Indebtedness or has become a guarantor or surety or pledged its credit for or otherwise become responsible with respect to any undertaking of another Person (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course of business);
(c) any Contract with (i) any Affiliate of any Seller (but excluding any contract with or relating to a Benefit Plan), or (ii) any officer or director of any Seller or Skyware (other than employment agreements or similar arrangements relating to their employment);
(d) any Contract (including a purchase order) with any customer or supplier with whom the Sellers or Skyware have entered into Contracts (including purchase orders), which, in the aggregate, have a commitment of more than $100,000 on an annual basis;
(e) any Contract involving a partnership, joint venture or other cooperative undertaking;
(f) any Contract involving any non-competition or similar restrictions binding on any Seller or Skyware, including with respect to the geographical area of operations or scope or type of business of such Seller or Skyware;
(g) any Contract for any material capital expenditures or material leasehold improvement, in each such Contract required to be filed as an exhibit to case in excess of $100,000;
(h) any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):collective bargaining agreement;
(i) any Contract required to be filed by involving the Company as a licensing, sharing, assignment or transfer of Intellectual Property, except “material contractoff the shelf” pursuant to Item 601(b)(10) of Regulation S-K under commercially available software programs purchased or licensed for less than $100,000 in the Securities Act that has not been so filedaggregate;
(iij) each any Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate containing an ▇▇▇▇▇▇)▇ Guarantee;
(ivk) each principal Contract creating, guaranteeing any letter of credit utilized in or securing Indebtedness for borrowed money otherwise related to the conduct of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)Business;
(vl) each material any Shared Contract with respect to the creation, formation, governance or control Business Portion of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with which contains a total consideration commitment of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)100,000 on an annual basis; and
(xm) any other Contract that is otherwise material to the operation of the Business. The Sellers have made available to the Purchaser copies of each Contract with a term exceeding one that is listed on Schedule 4.12 (1) year after excluding Contracts that the date of this Agreement which is a financial derivative interest rate hedge with a value Sellers have provided in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiariesredacted form due to confidentiality restrictions).
(b) . Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andset forth on Schedule 4.12, to the Knowledge of the CompanySellers’ Knowledge, of the other parties thereto, subject in all respects Contracts listed or required to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is be listed on Schedule 4.12 are in full force and effect and are enforceable by the applicable Seller or Skyware, as applicable, in accordance with their terms (subject to the Enforceability Limitations). With respect to the Company and Contracts set forth or required to be set forth on Schedule 4.12: (i) neither the Company Subsidiariesapplicable Seller or Skyware nor, as the case may be, and to the Knowledge Sellers’ Knowledge, any other party thereto, is in default under or in violation of any material term of such Contract; (ii) to the CompanySellers’ Knowledge, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (no event has occurred that, with or without notice or lapse of time, time or both, would constitute such a default or violation; (iii) no Seller or Skyware has released in breach writing or default to the Sellers’ Knowledge orally, any of its rights under any such Company Contract andContract; and (iv) no party to such Contracts has (x) repudiated in writing or, to Sellers’ Knowledge, orally, any of the material terms thereof, (y) or, to the Knowledge of the CompanySellers’ Knowledge, no other party threatened to terminate or cancel any such Company Contract is Contracts or (with or without z) to the Sellers’ Knowledge, provided written notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)that it will not renew any such Contract.
Appears in 1 contract
Contracts. (ai) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Schedule 4.1(o) of the Company Disclosure LetterSchedule sets forth under separate headings, as and the Company has made available to the Parent true, correct and complete copies of: (A) each Company Contract that is not cancelable without penalty by the Company, any of its Subsidiaries or any Fund party thereto upon 90 days or less notice or that involves the receipt or payment by the Company, such Subsidiary or such Fund in the prior fiscal year (or is reasonably likely to involve the receipt of payment by the Company, such Subsidiary or such Fund in the current fiscal year) of an amount in excess of $100,000, (B) each Company Contract with any one or more of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none directors or executive officers or members of their respective properties Immediate Families or assets is bound by entities in which any of them has greater than a 5% equity interest, (C) each Company Contract that is required to be described in the following categories of Contracts (each such Contract required Regulatory Reports publicly disclosed and filed with the SEC or to be filed as an exhibit thereto (which Company Contract is described in the Regulatory Reports publicly disclosed and filed with the SEC or filed as an exhibit thereto), (D) each Advisory Agreement, (E) each Company Contract with respect to or involving employment, severance, product design or development, personal services, consulting, non-competition or indemnification (including, without limitation, any Company Report or listed in Section 3.15 Contract involving employees of the Company Disclosure LetterCompany, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars Funds); ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(vF) each material Company Contract with respect to the creationor involving licensing, formation, governance merchandising or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
distribution; (viG) each Company Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with granting a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or first negotiation; (H) each Company Contract that is a shareholders, partnership, joint venture or similar right agreement; (I) each Company Contract for the acquisition, sale or lease of material properties or assets of the Company, any of its Subsidiaries or any Fund (by merger, purchase or sale of assets or stock or otherwise) entered into since its inception; (J) each Company Contract with any Governmental Authority; (K) each loan or credit agreement, mortgage, indenture, instrument or other Company Contract evidencing indebtedness for borrowed money by the Company, any of its Subsidiaries or Funds or any such Company Contract pursuant to which indebtedness for borrowed money may be incurred; (L) each Company Contract that purports to limit, curtail or restrict the ability of the Company, any of its Subsidiaries or any of the Funds to compete in any geographic area, line of business or otherwise or with any Person, or to obtain products or services from or engage in business transactions with, any other Person; (M) each Company Contract with or with respect to Mutual Risk Management Ltd.; (N) each Company Contract between the Company, any of its Subsidiaries or any of the Funds and any other Person (other than a wholly owned Subsidiary of the Company) in which the Company, any of its Subsidiaries or any of the Funds owns an equity interest; (O) each other Company Contract material to the business, governance, operations or financial condition of the Company, any of its Subsidiaries or any of the Funds, and (P) each commitment and agreement to enter into any of the foregoing. Each Company Contract set forth or required to be set forth in Schedule 4.1(o) of the Company or Disclosure Schedule is referred to herein as a "Material Contract."
(ii) Each of the Company, each of its Subsidiaries and each Fund which is a party to any Company Subsidiary could be required Material Contract has duly performed all its material obligations under such Material Contract, in each case to purchase or sellthe extent that such obligations have accrued; each Material Contract is in full force and effect and constitutes the valid and legally binding obligation of the Company, such Subsidiaries and each Fund, as applicable, any enforceable according to its terms; and no breach or default, alleged breach or default, or event which constitutes or would (with the passage of time, notice or both) constitute a material breach or default thereunder on the part of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advanceCompany, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to haveFund, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andor, to the Knowledge of the Company, of the any other parties party thereto, subject has occurred or, as a result of this Agreement or the performance by the Company of any of its covenants or obligations hereunder, will occur.
(iii) Except for those limits or requirements in all respects cases (A) or (B) immediately below as would not, individually or in the aggregate, reasonably be expected to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect have a Material Adverse Effect with respect to the Company, no Company and Contract to which the Company SubsidiariesCompany, as any of its Subsidiaries or any of the case may be, and Funds is a party or subject to (A) limits the Knowledge freedom of the Company, or any of its Subsidiaries or any of the Funds to compete in any line of business, any geographic area or otherwise or with any Person; or (B) contains any requirement of exclusive dealing with any other parties thereto Person anywhere in the world or with respect to any product, and no such Contract as described in such clauses (A) and (iiiB) none or any other Company Contract would be or purports to be valid and legally binding on the Parent or any of its Affiliates (other than the Company and its Subsidiaries) upon, and at any time after, the Closing, regardless of the Company scope of limits or any Company Subsidiary is requirements.
(with or without notice or lapse of time, or bothiv) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made or caused to be made available to the Parent true and complete copies of each Company Contract (includingall sales, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)marketing and account solicitation agreements and marketing arrangements relating to its investment advisory activities.
Appears in 1 contract
Sources: Merger Agreement (Massachusetts Mutual Life Insurance Co)
Contracts. Except as described in Schedule 4.7 (a) Except for all Contracts (other than the Contracts filed as exhibits License Agreements), agreements, commitments and instruments required to any Company Report, or be set forth in Section 3.15 on such Schedule 4.7 of the Company Seller Disclosure LetterSchedules, as of collectively, the date hereof“Material Contracts”), neither the Company any Seller nor any Company Seller Subsidiary is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (Athe License Agreements) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creationBusiness:
(a) lease or contract under which the Business is a lessee of, formationor holds or uses, governance any machinery, equipment, vehicle or control of other personal property owned by a third party and pursuant to which any material partnerships, joint ventures Seller or joint ownership arrangements with third partiesany Seller Subsidiary is obligated to spend more than $50,000 per annum;
(vib) each Contract that contract for the future purchase of inventory, materials, supplies or equipment pursuant to which any Seller or any Seller Subsidiary is obligated to spend more than $25,000 per annum under any such contract other than in the usual and ordinary course of the Business;
(Ac) relates to the acquisition contract under which any Seller or any Seller Subsidiary has borrowed or may borrow any money or issued or may issue any note, indenture or other evidence of assets indebtedness or directly or indirectly guaranteed liabilities or obligations of others (other than endorsements of checks for the purpose of collection in the ordinary course of business);
(d) or capital stock mortgage, pledge, security agreement, deed of trust or other securities document granting an encumbrance on any Sellers’ or any Seller Subsidiary’s assets;
(e) management, service or consulting or other similar type of contract which involves payments by mergerany Seller or any Seller Subsidiary in excess of $25,000 per annum;
(f) operating agreements, capital contribution design agreements, license agreements, or otherwise) of any Person after the date of this Agreement contract, in any case, entered into with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) third parties in the aggregate, (B) relates connection with any joint venture or other similar partnership arrangement Relating to the disposition Business;
(other than g) any agreements with vendors, suppliers or customers of the Business, except agreements (i) that are in substantially the form of a standard form contract with such vendors, suppliers or customers or (ii) relating to the purchase or sale of inventory in the ordinary course of business;
(h) after the date of this Agreementcovenant not to compete or confidentiality agreement; or
(i) any contract granting to any person first-refusal, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twentyfirst-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal offer or similar preferential right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, acquire any of the foregoing;
(vii) any Contract that requires the Company asset or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates assets which are material to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Business. Except as would not have or would not reasonably be expected to haveset forth in Schedule 4.7, individually or in the aggregate, a Company each Material Adverse Effect, (i) each Company Contract is a valid, valid and binding and legally enforceable obligation of Sellers or the Company or one of the Company Subsidiaries, as the case may be, Seller Subsidiary party thereto and, to the Knowledge of the CompanySellers, of the other parties thereto, subject in all respects to the Bankruptcy thereto and Equity Exceptions, (ii) each such Company Contract is in full force and effect in accordance with respect its terms. Except as set forth on Schedule 4.7, each Seller and each Seller Subsidiary has performed all material obligations required to be performed by it to the Company date hereof under the Material Contracts to which it is a party and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is not (with or without notice or the lapse of timetime or the giving of notice, or both) in breach or default under any such Company Contract thereunder and, to the Knowledge of the CompanySellers, no other party to any such Company Material Contract is (with or without notice or the lapse of timetime or the giving of notice, or both) in breach or default in any material respect thereunder. The Company No Seller or Seller Subsidiary has made available received any notice of termination of any Material Contract to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)which it is a party.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 5.16(a) of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of Schedule lists the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of collectively, the Company Disclosure Letter, a “Company ContractMaterial Contracts”):
(i) any Contract required to be filed all Contracts with customers, suppliers or vendors providing for annual expenditures or receipts or payments by the Company as a “material contract” pursuant to Item 601(b)(10) or the Subsidiaries of Regulation S-K under the Securities Act that has not been so filed$100,000 or more;
(ii) each Contract all Contracts relating to Company Indebtedness;
(iii) all Contracts relating to employment or compensation with an aggregate annual salary and cash bonus in excess of $50,000 or containing any change-in-control or severance payment obligations;
(iv) all Contracts providing for commission or equity or non-equity incentive payments;
(v) all lease agreements (whether of real or personal property) providing for annual lease payments in excess of $50,000;
(vi) all Contracts to which the Company or the Subsidiaries, on the one hand, and any Company Subsidiary is a party of the Company’s Affiliates (other than the Subsidiaries), on the other hand, are parties or by which they are bound that relate to or are connected in any way with the Business;
(avii) restricts all Contracts with any Governmental Authority;
(viii) all Contracts restricting the ability of the Company or any Company Subsidiary the Subsidiaries to engage in any line of business or to compete in with any business in any manner that is material Person;
(ix) all Contracts relating to the Company prospective acquisition or disposition of any material assets, product line or service offering outside the Ordinary Course of Business;
(x) all partnership, joint venture, operating agreements or other similar Contracts;
(xi) corporate integrity agreements, settlement and other agreements with Governmental Authorities;
(xii) agreements in which any of the Company Subsidiariesor its Subsidiaries manages the operations of another party, taken as a whole, and any agreement in which any of the Company or its Subsidiaries has material management services provided to it;
(bxiii) requires any agreement which contains any provisions requiring the Company or any Company Subsidiary to conduct indemnify any other party (excluding business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than associate agreements entered into in the ordinary course of business);
(xiv) or capital stock any guarantees by the Company of indebtedness or other securities obligations of the Company or any other Person;
(by mergerxv) any outstanding powers of attorney; and
(xvi) all agreements relating to worker’s compensation arrangements, capital contribution liabilities or otherwiseobligations.
(b) Each of any Person after the date of this Agreement with Material Contracts is in full force and effect, is a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets valid and binding obligation of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge is enforceable in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting creditors’ rights generally and general principles of the Company, the other parties thereto and (iii) none of equity). Neither the Company or any Company Subsidiary nor the Subsidiaries is (with or without notice or lapse of timein breach of, or both) in breach or default under under, any such Company Contract andMaterial Contract, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunderexcept for breaches and defaults that would not have a Material Adverse Effect. The Company has Sellers have made available to Parent true Buyer a true, correct and complete copies copy of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Contracts. (a) Except for Section 2.18(a) of the Contracts filed as exhibits Disclosure Schedule --------- ------------------------------------------ (with paragraph references corresponding to any Company Report, or those set forth in Section 3.15 below) contains a true and complete list of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any each of the following categories Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of Contracts (each such Contract required which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to be filed as an exhibit Purchaser prior to any Company Report or listed in Section 3.15 the execution of the Company Disclosure Letterthis Agreement), a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that or by which any of their respective Assets and Properties is bound:
(aA) restricts all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term, the name, position and rate of compensation of each Person party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and not embodied in a Contract) involving an obligation of the Company or any Subsidiary to make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of business;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Company Subsidiary to engage in any business activity or compete with any Person or, except as provided in Section 5.10, prohibiting or limiting the ability of any business in any manner that is material Person to the Company and the Company Subsidiaries, taken as a whole, (b) requires compete with the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeSubsidiary;
(iii) each Contract to which the Company all partnership, joint venture, shareholders' or other similar Contracts with any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)Person;
(iv) each principal Contract creating, guaranteeing or securing all Contracts relating to Indebtedness for borrowed money of the Company or any of Subsidiary or to Preferred Shares issued by the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) or any Subsidiary (other than Contracts for Indebtedness owing to or Indebtedness solely between Preferred Shares owned by the Company and or any of its wholly-owned Company Subsidiaries or between the wholly-owned Company SubsidiariesSubsidiary);
(v) each material Contract all Contracts with respect to the creationdistributors, formationdealers, governance manufacturer's representatives, sales agencies or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesfranchisees;
(vi) each Contract that all Contracts relating to (A) relates to the future disposition or acquisition of assets (any Assets and Properties, other than dispositions or acquisitions in the ordinary course of business) or capital stock or other securities (by mergerbusiness consistent with past practice, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, and (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoingBusiness Combination;
(vii) any Contract that requires all Contracts between or among the Company or any Company Subsidiary to make Subsidiary, on the one hand, and any advanceSeller, loan or commitment therefor officer, director, Affiliate or provide any credit support for Associate of such Seller or any capital contribution toAssociate of any such officer, director or other investment in, any Person Affiliate (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000), on the other hand;
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer all collective bargaining or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)similar labor Contracts;
(ix) each Contract with a term exceeding one all Contracts that (1A) year after limit or contain restrictions on the date ability of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company or any Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital shares, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any Business Combination or (B) require the Company or any Subsidiary to maintain specified financial ratios or levels of its wholly-owned Subsidiaries net worth or solely among its wholly owned Subsidiaries)other indicia of financial condition; and
(x) each Contract with a term exceeding one (1) year after all other Contracts that involve the date payment or potential payment, pursuant to the terms of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between any such Contract, by or to the Company and or any Subsidiary of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)more than US$50,000.
(b) Except as would not have or would not reasonably Each Contract required to be expected to have, individually or disclosed in Section 2.18(a) of ------------------ the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract Disclosure Schedule is in full force and effect and constitutes a legal, ----------------------- valid and binding agreement, enforceable in accordance with respect its terms, of each party thereto; and except as disclosed in Section 2.18(b) of the Disclosure --------------------------------- Schedule neither the Company, any Subsidiary nor, to the knowledge of the -------- Sellers, the Company and the Company Subsidiaries, any other party to such Contract is, or has received notice that it is, in violation or breach of or default under any such Contract (or with notice or lapse of time or both, would be in violation or breach of or default under any such Contract).
(c) Except as disclosed in Section 2.18(c) of the case may Disclosure --------------------------------- Schedule, neither the Company nor any Subsidiary is a party to or bound by any -------- Contract that has been or could reasonably be expected to be, and individually or in the aggregate with any other such Contracts, materially adverse to the Knowledge of the Company, the other parties thereto and (iii) none Business or Condition of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)its Subsidiaries.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3B.12(a) of the Company i-STT Disclosure Letter, Letter lists (under the appropriate subsection) each of the following written or oral contracts and agreements of i-STT or any i-STT Subsidiary as of the date hereof, neither of this Agreement (such contracts and agreements being the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contracti-STT Material Contracts”):
(i) each contract and agreement for the purchase or lease of personal property with any Contract required supplier or for the furnishing of services to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation Si-K under the Securities Act that has not been so filedSTT or any i-STT Subsidiary with payments greater than $100,000 per year;
(ii) each Contract all broker, exclusive dealing or exclusivity, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company i-STT or any Company i-STT Subsidiary is a party that (a) restricts the ability of the Company or any Company other contract that compensates any person based on any sales by i-STT or any i-STT Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, not cancelable (bwithout penalty) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeupon 30 days notice;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess all leases and subleases of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)real property;
(iv) each principal Contract creating, guaranteeing or securing Indebtedness all contracts and agreements relating to indebtedness for borrowed money of the Company i-STT or any i-STT Subsidiary, including any contracts and agreements in which i-STT or any i-STT Subsidiary is a guarantor of the Company Subsidiaries in excess indebtedness;
(v) all contracts and agreements with any Governmental Entity to which i-STT or any i-STT Subsidiary is a party;
(vi) all contracts containing confidentiality requirements (including all nondisclosure agreements);
(vii) all contracts and agreements between or among i-STT or any i-STT Subsidiary and STT Communications or subsidiaries of Twenty-Five Million Dollars ($25,000,000) STT Communications (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its whollyi-owned Company Subsidiaries or between the wholly-owned Company STT Subsidiaries);
(vviii) each material Contract with respect all contracts and agreements relating to the creationvoting and any rights or obligations of a stockholder of i-STT or any i-STT Subsidiary;
(ix) all contracts to manufacture for, formationsupply to or distribute to any third party any products or components;
(x) all contracts regarding the acquisition, governance issuance or transfer of any securities and each contract affecting or dealing with any securities of i-STT or any i-STT Subsidiary, including, without limitation, any restricted stock agreements or escrow agreements;
(xi) all contracts providing for indemnification by i-STT or any i-STT Subsidiary of any officer, director, employee or agent of i-STT or any i-STT Subsidiary;
(xii) all contracts related to or regarding the performance of consulting, advisory or similar services by any third party (other than employees);
(xiii) all other contracts that have a term of more than 60 days and that may not be terminated by i-STT or any i-STT Subsidiary, without penalty, within 30 days after the delivery of a termination notice by i-STT or any i-STT Subsidiary;
(xiv) any agreement of i-STT or any i-STT Subsidiary that is terminable upon or prohibits assignment or a change of ownership or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesi-STT;
(vixv) each Contract that (A) relates to the acquisition of assets (all other than contracts and agreements, whether or not made in the ordinary course of business, that are reasonably expected to result in an exchange of consideration with an aggregate value greater than $100,000, during the year ending December 31, 2002 or 2003; and
(xvi) any agreement of guarantee, assumption or capital stock endorsement of, or other securities any similar commitment with respect to, the obligations, liabilities (by mergerwhether accrued, capital contribution absolute, contingent or otherwise) or indebtedness of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (person other than software licenses or professional services contracts entered into in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each i-STT Material Adverse Effect, Contract (i) each Company Contract is valid and binding on i-STT or a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiariesi-STT Subsidiary, as the case may be, and, to the Knowledge of the Company, of on the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect, and (ii) except as set forth on Section 3B.06 of the i-STT Disclosure Letter, upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect with respect without penalty, right of termination that would not have otherwise existed but for the transactions contemplated by this Agreement, change to mutual terms or other adverse consequence. Neither i-STT nor any i-STT Subsidiary is in material breach or material violation of, or material default under, any i-STT Material Contract and, to the Company knowledge of STT Communications or i-STT, no other party to any i-STT Material Contract is in material breach or material violation thereof or default thereunder.
(c) i-STT has made available to Parent and Pihana accurate and complete copies of all i-STT Material Contracts identified in Section 3B.12(a) of the Company Subsidiariesi-STT Disclosure Letter, including all amendments thereto. Section 3B.12(a) of the i-STT Disclosure Letter provides an accurate description of the terms of each i-STT Material Contract that is not in written form.
(d) Except as set forth in Section 3B.12(d) of the case may bei-STT Disclosure Letter, to STT Communications’ or i-STT’s knowledge, no event has occurred, and to the Knowledge of the Companyno circumstance or condition exists, the other parties thereto and (iii) none of the Company or any Company Subsidiary is that (with or without notice or lapse of time) will, or bothwould be reasonably be expected to, (i) result in a material breach or material violation of, or material default under, any i-STT Material Contract, (ii) give any entity the right to declare a default, seek damages or exercise any other remedy under any such Company i-STT Material Contract, (iii) give any entity the right to accelerate the maturity or performance of any i-STT Material Contract andor (iv) give any entity the right to cancel, to the Knowledge of the Company, no other party to terminate or modify any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)i-STT Material Contract.
Appears in 1 contract
Sources: Combination Agreement (Equinix Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company ReportThe Disclosure Schedule lists all Material Contracts. For purposes of this Agreement, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any "Material Contracts" means all contracts of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract types to which the Company or any Company Subsidiary of its subsidiaries is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to by which the Company or any Company Subsidiary is a party that provides for payments to or from the Company of its subsidiaries or any its Subsidiaries of their respective properties is bound as of the date hereof and will be bound following the Closing, including real property leases, labor or employment-related agreements, and contracts relating to intellectual property: (a) joint venture and limited or general partnership agreements, shareholder agreements with respect to the Company's subsidiaries, joint ventures or partnerships or other contracts involving sharing of profits, losses, costs or liabilities, (b) mortgages, indentures, loan or credit agreements, letters of credit, reimbursement agreements, personal property leases, security agreements and other agreements and instruments relating to the borrowing of money or extension of credit in any case in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales100,000, (Bc) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of other contracts which are not cancelable by the Company or any of its subsidiaries on notice of sixty (60) days or less and which require payment by the Company Subsidiaries after the date hereof of more than $100,000 in excess any one calendar year, (d) material license or royalty agreements, whether the Company or any of Twentyits subsidiaries is the licensor or licensee thereunder, (e) confidentiality and non-Five Million Dollars disclosure agreements ($25,000,000) (whether the Company or any of its subsidiaries is the beneficiary or the obligated party thereunder), other than Contracts for Indebtedness or Indebtedness solely between such agreements entered into with consultants to the Company and any of its whollysubsidiaries, (f) contracts for the Company's or its subsidiaries' employer-owned Company Subsidiaries or between sponsored centers under which the whollyemployer-owned Company Subsidiaries);
(v) each material Contract with respect sponsor is to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person make a payment after the date hereof of this Agreement with a total consideration of $100,000 or more than Twenty-Five Million Dollars ($25,000,000) in the aggregateany one calendar year, (Bg) relates to contracts containing covenants limiting the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets freedom of the Company or its subsidiaries or any of their respective officers to engage in any line of business or compete with any Person that relates directly or indirectly to the Company's business, (h) indemnification agreements with respect to any acquisition or disposition of assets, securities or business, whether the Company Subsidiaries and its subsidiaries is the indemnitor or indemnitee, (i) contracts with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) Person known to be an affiliate of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars and its subsidiaries), and ($25,000,000);
(viiij) any Contract entered into since January 1executory contract relating to any material acquisitions or dispositions of assets, 2016 that relates to the sale, transfer securities or other disposition of a business or assets businesses by the Company or any its subsidiaries. The Company Subsidiary pursuant and its subsidiaries have made available to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess Parent a true and correct copy of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) Material Contract. Except as set forth in the aggregate after the date of this Agreement Disclosure Schedule, (other than Contracts solely between a) the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract subsidiaries are in compliance in all material respects with a term exceeding one (1) year after their respective obligations under the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
Material Contracts, (b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation all of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is Material Contracts are in full force and effect with respect to effect, are valid and binding obligations of the Company and its subsidiaries and enforceable in all material respects by the Company Subsidiariesand its subsidiaries in accordance with their terms except to the extent that such enforceability may be limited by bankruptcy, as the case may bereorganization, insolvency, fraudulent conveyance, moratorium, receivership or similar laws affecting creditors' rights generally and by general principles of equity (whether considered at law or in equity), and (c) to the Knowledge knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company a Material Contract is (in compliance with or without notice or lapse of time, or both) in breach or default its material obligations thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 1 contract
Sources: Merger Agreement (Childrens Discovery Centers of America Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 4.13 of the Company Disclosure Letter, as Schedule lists (i) all material Company Agreements and (ii) each of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties Agreements (whether or assets is bound by any not material) of the following categories of Contracts types which are currently in effect (each such Contract required to be filed as an exhibit to any the Company Report Agreements described by the immediately foregoing clauses (i) and (ii), whether or not listed in on Section 3.15 4.13 of the Company Disclosure LetterSchedule, being referred to hereinafter as the "LISTED COMPANY AGREEMENTS"):
(a) any lease of, or agreement to purchase or sell, any capital assets accounted for as such by the Company or any Company Subsidiary;
(b) any collective bargaining agreement or other agreement with any union or other labor organization (each a “"Collective Bargaining Agreement");
(c) any management, consulting, employment, personal service, agency or other contracts or contracts providing for employment or rendition of personal services and which (i) are in writing or oral and create other than an at will employment relationship; or (ii) provide for any commission, bonus, profit sharing, incentive, severance, retirement or similar compensation for personal services;
(d) any agreement or note evidencing any Indebtedness or any guaranty of Indebtedness of another Person or creating any Encumbrance;
(e) any material agreement with a dealer, distributor, sales agent, or representative or franchisee;
(f) any agreement for the storage, transportation, treatment or disposal of any Hazardous Substances;
(g) any power of attorney (whether revocable or irrevocable) given to any Person by the Company Contract”):or any Company Subsidiary, other than powers of attorney with respect to customs and transportation matters that have been granted to agents of a Company Subsidiary in the ordinary course of business consistent with past practice;
(h) any agreement which purports to limit in any respect the manner in which, or the localities in which, the Company, any Company Subsidiary or any other entity is entitled to conduct all or any portion of its business;
(i) any Contract required agreement restricting the right of the Company or any Company Subsidiary to use or disclose any information in its possession other than immaterial agreements entered into in the ordinary course of business consistent with past practice;
(j) any partnership, joint venture or similar arrangement;
(k) any agreement or arrangement with any affiliate or associate of the Company or any Company Subsidiary;
(l) any agreement by which the Company or any Company Subsidiary indemnifies or holds harmless any other Person other than agreements entered into in the ordinary course of business consistent with past practice;
(m) any agreement pursuant to which a rebate, discount, bonus, commission or other payment with respect to the sale of any product of the Company or any Company Subsidiary will be filed payable after the Effective Time, other than agreements entered into in the ordinary course of business consistent with past practice that do not provide for rebates, discounts, bonuses, commissions or other payments that are materially greater, individually or in the aggregate, than the rebates, discounts, bonuses, commissions and other payments payable by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under or any Company Subsidiary during the Securities Act that has not been so filedCompany's fiscal year ended September 28, 2003;
(iin) each Contract any agreement containing "change in control," "antitakeover" or similar provisions that could reasonably be expected to be triggered by the consummation of the transactions contemplated hereby;
(o) any lease of real property (a "Real Property Lease") to which the Company or any Company Subsidiary is a party that (acollectively, "Leases");
(p) restricts any agreement involving the ability acquisition, merger or purchase of the Company assets or business of a third party;
(q) any Company Subsidiary to engage agreement with a supplier or a group of affiliated suppliers (other than purchase orders in or compete in any the ordinary course of business in any manner that is material to accordance with past practice) which involves annual payments from the Company and the Company Subsidiaries, taken as a whole, Subsidiaries of an amount in excess of $50,000; and 37
(br) requires any agreement with the twenty five largest customers or groups of affiliated customers of the Company and the Company Subsidiaries (based on 2003 annual consolidated revenues). True and complete copies of the written Listed Company Agreements and descriptions of oral Listed Company Agreements, if any, including in each case any amendment or any supplement thereto, have been delivered to Parent. Each of the Listed Company Subsidiary Agreements is in full force and effect and constitutes the legal and binding obligation of the Company and/or the Company Subsidiaries party thereto and, to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business knowledge of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect constitutes the business legal and binding obligation of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company other parties thereto. There are no existing breaches or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets defaults by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andor, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none knowledge of the Company or any Company Subsidiary is (with or without notice or lapse of timeSubsidiary, or both) in breach or default any other party to a Listed Company Agreement under any such Listed Company Contract Agreement and, to the Knowledge knowledge of the CompanyCompany or any Company Subsidiary, no other party to any such Company Contract is (event has occurred which, with the passage of time or without the giving of notice or lapse of timeboth, or both) in could reasonably be expected to constitute such a breach or default thereunderdefault. The agreement referenced in Section 4.13(z) of the Company has made available to Parent true and complete copies Disclosure Schedule is terminable without penalty by the Company Subsidiary party thereto effective as of each Company Contract (includingSeptember 30, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals 2004 in accordance with respect thereto)its terms.
Appears in 1 contract
Sources: Merger Agreement (Solo Texas, LLC)
Contracts. (aa. Section 3.11(a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 of the Company Disclosure LetterSchedule sets forth, as of the date hereofof this Agreement, neither the Company nor any Company Subsidiary is a party to, complete and none of their respective properties or assets is bound by any correct list of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any a Company Subsidiary is a party that are included within the following categories:
i. any Contract with (aA) restricts any vendor, supplier or other Third Party to whom the Company or a Company Subsidiary made payments during the calendar year of 2022 in excess of $150,000 in the aggregate other than Contracts with respect to Company Benefit Plans or any Leased Real Property or (B) any Material Company Customer (excluding, in each case, sales orders and purchase orders issued in the Ordinary Course);
ii. any Contract that sets forth the terms of a joint venture, partnership or other partial ownership arrangement or sharing of profits or losses with any other Person, in each case, that is material to the Company Business as currently conducted and under which there are continuing obligations by a party thereto (for clarity, excluding Contracts that contain any royalty arrangement but that do not otherwise contemplate a joint venture type arrangement);
iii. any Contract that limits or purports to limit or restrict the ability of the Company or a Company Subsidiary to compete or engage in any line of business or with any Person or in any geographic area or during any period of time, if such limitation or restriction would adversely impact the Company Business as currently conducted (and, for the avoidance of doubt, an obligation not to solicit or hire any employees or independent contractors will not be deemed to limit or restrict the ability of the Company or any Company Subsidiary to compete or engage in any line of business or compete with any Person or in any geographic area or during any period of time);
iv. any Contract (A) under which the Company or any Company Subsidiary incurs any indebtedness for borrowed money in excess of $100,000 or (B) that grants a Lien on any material asset of the Company or a Company Subsidiary (other than a Permitted Lien or a Lien that will be released as of the Closing);
v. any lease or sublease of Leased Real Property;
vi. any Contract (A) for the purchase, assignment, transfer or other acquisition of any business, material business line, all or substantially all of the assets of, or all or substantially all of the equity interests in any manner Person , (B) the disposition or sale of any business, material business line, all or substantially all of the assets of, or all or substantially all of the equity interests in any Person, in each case of clauses (A) or (B) that contains express representations, covenants, indemnities or other obligations (including indemnification, “earn out” or other contingent obligations) of the Company or any Company Subsidiary that are still in effect as of the date of this Agreement or (C) that contains a right of first refusal or similar right or option to acquire or exclusively license all or a material portion of the assets of the Company and the Company Subsidiaries taken as a whole;
vii. any Contract under which (A) any Third Party directly or indirectly guarantees any material liabilities or obligations of the Company or a Company Subsidiary or (B) the Company or a Company Subsidiary guarantees any material liabilities or obligations of any Third Party;
viii. any employment Contract for any Employee that as of the date of this Agreement has an annual base salary in excess of $200,000 (excluding any Contract providing for employment at-will);
ix. any Contract under which the Company or any Company Subsidiary receives as of March 31, 2023 contracted annual recurring revenue of $400,000 or more that provides any customer of the Company or any Company Subsidiary with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to the other customer(s) of the Company or such Company Subsidiary, including Contracts containing “most favored nation” or “favored pricing” provisions;
x. any Contract that provides for a settlement, conciliation or similar arrangement in connection with any Proceeding or threatened Proceeding, which includes any material non-monetary remedies that will continue, or pursuant to which the Company or a Company Subsidiary is required to make any payments in excess of $100,000, after the Closing; or xi. (A) any Contract to which any U.S. federal Governmental Entity is a party and (B) any Contract under which the Company or any Company Subsidiary receives as of March 31, 2023 contracted annual recurring revenue of $300,000 or more to which any Governmental Entity other than U.S. federal Governmental Entities is a party (other than, in each case, Permits).
b. The Contracts set forth in Section 3.11(a) of the Company Disclosure Schedule and the Company License Agreements (collectively, the “Company Material Contracts”) are valid, binding and in full force and effect with respect to the Company or a Company Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto, subject, as to enforcement, to the Enforceability Exceptions, except (i) to the extent that any Company Material Contract expires or is terminated in accordance with its terms, and (ii) for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate, be material to the Company and the Company Subsidiaries, taken as a whole, (b) requires . Neither the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or nor any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or material default under any such Company Material Contract to which it is a party, and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in material breach or material default thereunder. Except as set forth on Section 3.11(b) of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Company Subsidiary has given any oral or written notice or received any written notice, or to the Company’s Knowledge, any oral notice, terminating, not renewing, or expressing an intent to terminate or not to renew any Company Material Contract. The Company and each Company Subsidiary party to a Company Material Contract has performed in all material respects all obligations, if any, required to be performed by it pursuant to such Company Material Contract. Complete and correct copies of all Company Material Contracts, including all amendments and material statements of work thereto, have been made available to Parent true and complete copies Parent, except to the extent such Company Material Contracts have been redacted to (i) enable compliance with Laws, or (ii) comply with confidentiality obligations owed to Third Parties.
c. With respect to each Contract listed or required to be listed on Section 3.11(a)(xii) of each the Company Disclosure Schedule (“Government Contract”) or any bid which, if accepted, would result in a Government Contract (includinga “Government Bid”), for except as set forth on Section 3.11(c) of the avoidance of doubtCompany Disclosure Schedule: (i) the Company or a Company Subsidiary, as applicable, has complied in all material amendmentsrespects with all material terms and conditions of such Government Contract or Government Bid, modificationsincluding all clauses, extensionsprovisions and requirements incorporated expressly by reference or by operation of Law therein; (ii) all representations and certifications executed, acknowledged or binding in such Government Contract or Government Bid were complete and correct in all material respects as of the dates they were made (or deemed made), and the Company or a Company Subsidiary, as applicable, has complied in all material respects with all such representations and certifications; (iii) all information submitted by the Company or a Company Subsidiary, as applicable, in support of the negotiation of the Government Contracts or Government Bids, or renewals modifications thereto, or in support of requests for payments thereunder, was, as of the date of submission, accurate in all material respects except to the extent limited on such a date by a Company or Company Subsidiary qualification based on knowledge; (iv) no Governmental Entity nor any prime contractor, subcontractor or other Person has notified the Company or a Company Subsidiary, either in writing or, to the Knowledge of the Company, orally, that the Company or a Company Subsidiary within the past three years has materially breached or materially violated any Law, certification, representation, clause, provision or requirement pertaining to such Government Contract or Government Bid; (v) in the three-year period immediately preceding the date of this Agreement, neither the Company nor any Company Subsidiary has been notified in writing or, to the Knowledge of the Company, orally, by any Governmental Entity or any prime contractor that any such Government Contract has been terminated for default, and no cure notice or show cause notice is currently in effect pertaining to any such Government Contract; (vi) in the three-year period immediately preceding the date of this Agreement, to the Knowledge of the Company, no money due to the Company or a Company Subsidiary pertaining to such Government Contract has been withheld or offset nor has any claim been made in writing to withhold or offset money; and (vii) the Company, the Company Subsidiaries nor any of the Company’s Principals as that term is defined in Federal Acquisition Regulation 52.209-5 are not currently, and within the past three years have not been, suspended or debarred from doing business with respect thereto)a Governmental Entity, or, to the Company’s Knowledge, been proposed for suspension or debarment, or subject to a finding of non-responsibility or ineligibility for contracting with a Governmental Entity on a Government Bid.
Appears in 1 contract
Sources: Merger Agreement (Limeade, Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 2.12(a) of the Company Disclosure LetterSchedule sets forth, as of the date hereofAgreement Date, neither a complete and correct list of each of the Company nor following Contracts (other than any Company Subsidiary Plans or Contracts solely between Company Group Members and/or Affiliated Practices, with the exception of Section 2.12(a)(xx)) to which any Company Group Member or Affiliated Practice is a party to, (the Contracts and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract other documents required to be filed as an exhibit to any Company Report or listed in Section 3.15 2.12(a) of the Company Disclosure LetterSchedule, each a “Company Material Contract”):
(i) any Contract required to be filed by the Company as Contracts with a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedSignificant Customer or Significant Supplier;
(ii) each Contract to which the Company or Expansion Agreement, as amended, Sale Notice Side Letter, Right of First Refusal Agreement, Humana Affiliated Partner Agreements, Physician Participation Agreements and all other agreements between Humana and any Company Subsidiary is a party that (a) restricts the ability of the Company Group Member or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeAffiliated Practice;
(iii) each Contract to which Contracts where the Company has transferred or has agreed to transfer ownership of any Company Subsidiary is a party that provides for payments Company-Owned IP Rights to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)unaffiliated Person;
(iv) each principal Contract creatingAll licenses pursuant to which any third party is authorized to use any Company-Owned IP Rights, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between under any customary and nonexclusive licenses granted in the Company Ordinary Course of Business, including to suppliers, service providers, consultants, independent contractors, employees, channel partners, and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)direct and indirect customers;
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that Other than (A) relates “shrink wrap” and other licenses for generally available commercial Software or technology with annual fees of $75,000 or less or under standard end user object code licenses to the acquisition of assets (other than in the ordinary course of business) such Software, or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to licenses granted (i) solely for the disposition (other than in the ordinary course purpose of business) after the date of this Agreement, directly or indirectly, of assets of allowing the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries Group Members to provide services to such licensor or (Cii) contains a putthat are otherwise incidental to and not material to performance under the applicable Contract, call, right of first refusal or similar right all licenses pursuant to which the Company or a Subsidiary is authorized to use any Third-Party IP Rights;
(vi) Contracts pursuant to which any third party developed any software, technology or Intellectual Property, independently or jointly, either by or for any Company Subsidiary could be required to purchase Group Member or sellAffiliated Practice, as applicablewhich software, technology or Intellectual Property is used or incorporated into any products or services of the foregoingCompany (other than generally available commercial Software or technology, employee invention assignment agreements and consulting agreements on the Company’s standard form of agreement, copies of such standard form which have been provided to Parent);
(vii) any Contract that requires Contracts for the Company acquisition, sale or lease of material properties or a material portion of assets of any Company Subsidiary to make any advanceGroup Member or Affiliated Practice (by merger, loan purchase or commitment therefor sale of stock or provide any credit support for assets or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiaryotherwise) in each case with a fair market value in excess of Twenty-Five Million Dollars ($25,000,000)200,000 other than for Contract entered into in the Ordinary Course of Business;
(viii) any Contract entered into since January 1loan or credit agreement, 2016 that relates to the salemortgage, transfer indenture, note or other disposition Contract evidencing indebtedness for borrowed money (contingent or otherwise but excluding any letter of a business credit) by any Company Group Member or assets by the Company Affiliated Practice, or any Company Subsidiary Contract pursuant to which the indebtedness for borrowed money (contingent or otherwise but excluding any letter of credit) may be incurred or is guaranteed by a Company Group Member or Affiliated Practice, or any guarantees by third parties for the benefit of any Company Subsidiary has Group Member or Affiliated Practice, in each case, in an aggregate principal amount in excess of $100,000;
(ix) Mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien (other than Permitted Liens) on any continuing indemnificationmaterial property or assets of any Company Group Member or Affiliated Practice other than for capital equipment in the Ordinary Course of Business;
(x) any Contract for capital expenditures in excess of $100,000 individually or $300,000 in the aggregate;
(xi) Contracts containing a covenant expressly limiting in any material respect the freedom of any Company Group Member or Affiliated Practice (or that would limit in any material respect the freedom of Parent, guaranteethe Surviving Corporation and their respective Subsidiaries after the Closing) to (I) engage in any business with any Person or in any geographic area or to compete with any Person or (II) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services;
(xii) Contracts obligating any Company Group Member or Affiliated Practice (or that would limit in any material respect the freedom of Parent, the Surviving Corporation and their respective Subsidiaries after the Closing) to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party, or granting any Person “earnoutmost favored nation” or similar status with respect to any Company Group Member’s or Affiliated Practice’s products or services;
(xiii) Contracts for the currently active leases or subleases or licenses of real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other contingentpersonal property to or by any Company Group Member or Affiliated Practice, deferred other than leases, subleases or fixed payment obligations licenses that would reasonably be expected to result in do not involve aggregate payments in excess of Twenty$100,000 over the 12-Five Million Dollars ($25,000,000)month period ending December 31, 2020 or the 12-month period ending December 31, 2021;
(ixxiv) each (A) any Contract for the employment or engagement of any current Company Personnel that provides for gross annual compensation in excess of $150,000; (B) any Contract for the employment or engagement of any current Company Personnel that is not immediately terminable by the Company at-will without notice, severance, cost or liability; and (C) any Contract that provides for retention payments, change of control payments, accelerated vesting, or any payment or benefit that may or will become due to any Company Personnel or any other Person on account of the consummation of the Merger or any other transaction contemplated by this Agreement;
(xv) Contracts (other than those listed in Section 2.12(a)(xiii) of the Company Disclosure Schedule and Contracts with respect to compensation for services rendered by such officer, director or employee in the ordinary course or as otherwise provided for pursuant to a Company Plan) with any of its officers, employees, consultants or beneficial owners of more than 5% of the total shares of Company Common Stock;
(xvi) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by any of the Company Group Members in the Ordinary Course of Business or in connection with a term exceeding one potential sale or financing transaction in the nine (19) year after months prior to the date of this Agreement for future purchases, exchange or sales Agreement;
(xvii) any settlement agreement of gas, oil or electric energy any Legal Proceeding entered into during the Relevant Period which would require the Company to pay consideration in excess of Fifty Million Dollars $150,000;
($50,000,000xviii) in the aggregate after the date any Contracts set forth on Section 2.3(c) of this Agreement (other than Contracts solely between the Company Disclosure Schedule;
(xix) (A) any partnership or joint venture Contract, (B) any Contract that involves any sharing of revenues, profits or losses with one or more Persons, or (C) any Contract that involves the payment of royalties to any other Person;
(xx) Contracts between each Affiliated Practice and/or its shareholders and any of its wholly-owned Subsidiaries Company Group Member, including any management agreement and any participation agreement relating to the Centers for Medicare and Medicaid Services (“CMS”) Direct Contracting model;
(xxi) Contracts with a third party payor or solely among its wholly owned Subsidiaries)involving a third party payor program during the calendar year ended December 31, 2020; and
(xxxii) each Contract Contracts with a term exceeding one (1) year after Governmental Authority, including any agreements involving participation in the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)CMS Direct Contracting model.
(b) Except as would not have or would not reasonably be expected to have, individually or in Each of the aggregate, a Company Material Adverse Effect, (i) each Company Contract Contracts is a valid, binding and legally in full force and effect and, assuming due execution and delivery by the other parties thereto, is enforceable obligation of in accordance with its terms by any Company Group Member, subject to the Bankruptcy and Equity Exception. No Company Group Member or one of the Company Subsidiaries, as the case may be, andAffiliated Practice nor, to the Knowledge of the Company, of the any other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract Person is in full force and effect with default in any material respect under any Material Contract except for any such default that would not reasonably be expected to be material to the Company and the Company Subsidiaries, Group or any Affiliated Practice taken as the case may be, and to a whole. To the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (no condition exists that, with or without notice or lapse of timetime or both, would (i) constitute a default in any material respect under any Material Contract by Company Group Member or Affiliated Practice or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to accelerate the maturity or performance of any obligation of any Company Group Member or Affiliated Practice under any Material Contract, or both(C) in breach the right to cancel, terminate or default under modify any Material Contract, except for any such defaults or rights (which if exercised) that would not reasonably be expected to be material to the Company Contract andGroup or any Affiliated Practice taken as a whole. No Company Group Member or Affiliated Practice has received any written notice or, to the Knowledge of the Company, no other party to communication regarding any such Company Contract is (with actual or without notice possible violation or lapse of timebreach of, default under, or both) in breach intention to cancel or default thereundermodify any Material Contract. The Company has made available to Parent true True, correct and complete copies of each Company Contract (including, for all Material Contracts have been provided to Parent at least two Business Days prior to the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Agreement Date.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set Set forth in Section 3.15 3.13(a) of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Schedule is a party to, and none list of their respective properties or assets is bound by any each of the following categories Contracts to which the Company, any of Contracts its Subsidiaries or any Joint Venture is a party:
(each such i) any Contract that would be required to be filed as an exhibit to any Company a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be report was filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under with the Securities Act that has not been so filedSEC on the date hereof;
(ii) each any Contract that purports to which the Company limit, curtail or any Company Subsidiary is a party that (a) restricts restrict the ability of the Company Company, any of its existing or future Subsidiaries or Affiliates or any Company Subsidiary Joint Venture to engage in or compete in any geographic area or line of business or restrict the Persons to whom the Company, any of its existing or future Subsidiaries or Affiliates or any Joint Venture may sell products or deliver services;
(iii) partnership or joint venture agreement;
(iv) Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) (A) entered into since August 1, 2003 or (B) currently in effect, which requires ongoing performance or imposes ongoing obligations;
(v) Contract with any manner (A) Governmental Authority or (B) director or officer of the Company, any of its Subsidiaries or Affiliates or any Joint Venture;
(vi) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company, any of its Subsidiaries or any Joint Venture or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company, any of its Subsidiaries or any Joint Venture;
(vii) financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(viii) voting agreement or registration rights agreement;
(ix) mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company, any of its Subsidiaries or any Joint Venture;
(x) customer, client or supply Contract (other than a purchase order received in the ordinary course of business) that involves consideration in fiscal year 2006 in excess of $2,000,000 or that is reasonably likely to involve consideration in fiscal year 2006 or fiscal year 2007 in excess of $2,000,000;
(xi) Contract (other than customer, client or supply Contracts or purchase orders received in the ordinary course of business) that involve consideration (whether or not measured in cash) of greater than $2,000,000;
(xii) collective bargaining agreement;
(xiii) agreement pursuant to which it has agreed to a “standstill” or similar obligation;
(xiv) to the extent material to the business or financial condition of the Company and the Company its Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation lease or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services salesrental Contract, (B) Contracts for future purchasesproduct design or development Contract, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregateconsulting Contract, (BD) relates to the disposition indemnification Contract, (other than in the ordinary course of businessE) after the date of this Agreementlicense or royalty Contract, directly (F) merchandising, sales representative or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries distribution Contract or (CG) contains Contract granting a put, call, right of first refusal or similar right pursuant first negotiation; and
(xv) commitment or agreement to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, enter into any of the foregoing;
; (viithe Contracts and other documents required to be listed on Section 3.13(a) any Contract that requires of the Company or Disclosure Schedule, together with any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or and all other investment in, any Person (other than the Company or any Company Subsidiary) in excess Contracts of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract such type entered into since January 1in accordance with Section 5.2(a), 2016 that relates each a “Material Contract”). The Company has heretofore made available to Parent correct and complete copies of each Material Contract or summaries in the sale, transfer or other disposition case of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result customer Material Contracts in aggregate payments in excess existence as of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchaseshereof, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company together with any and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company all amendments and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Except as separately identified in Section 3.13(b) of the Company Disclosure Schedule, (i) each of the Material Contracts is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company, its Subsidiaries and the Joint Venture party thereto, subject to the Bankruptcy and Equity Exception; (ii) no approval, consent or waiver of any Person is needed in order that any Material Contract continue in full force and effect following the consummation of the transactions contemplated hereby; (iii) none of the Company, any of its Subsidiaries or any Joint Venture is in default under any Material Contract, nor does any condition exist that, with notice or lapse of time or both, would not have or would not reasonably be expected to haveconstitute a default thereunder by the Company and its Subsidiaries and the Joint Ventures party thereto, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, ; (iiv) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (in default thereunder, nor does any condition exist that with or without notice or lapse of timetime or both would constitute a default by any such other party thereunder, except for such defaults as, individually or bothin the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; and (v) in none of the Company, any of its Subsidiaries or any Joint Venture has received any notice of termination or cancellation under any Material Contract, received any notice of breach or default thereunder. The Company in any material respect under any Material Contract which breach has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensionsnot been cured, or renewals with respect thereto)granted to any third party any rights, adverse or otherwise, that would constitute a breach of any Material Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.18 of the Company Disclosure LetterLetter sets forth, as of the date hereof, neither the a list of:
(i) all Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be described in, or filed as an exhibit to to, any Company Public Report that are not so described or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract filed as 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 that has not been so filedor the Exchange Act, as the case may be;
(ii) each all Company Contracts that, to the Knowledge of the Company (x) impose any material limitations, restrictions or penalties on the Company’s manufacture, sale or distribution of any current or future Company Product or a material aspect of the Company’s business, or which after the Effective Time could impose similar restrictions on Parent or any of its Subsidiaries, with respect to any of their respective products or services or a material aspect of the operation of their businesses, or (y) grant the other party to such Company Contract or a third party “most favored nation” pricing or terms that (1) apply to which the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(iii) all material Company Subsidiary is Contracts providing for (A) indemnification (including with respect to Intellectual Property Rights) or (B) any material guaranty of third party obligations, in each of the foregoing cases entered into outside the ordinary course of business;
(iv) all material Company Contracts relating to revenue or profit-sharing joint ventures (whether in partnership, limited liability company or other organizational form);
(v) all Company Contracts with any Governmental Entity (other than ordinary course customer Contracts providing for payments below $1,000,000 and pursuant to which the counterparty does not have any rights to the Company’s or its Subsidiaries products or services or Company Intellectual Property Rights other than its rights to use the products or services sold under such Company Contract as a party customer);
(vi) all Company Contracts entered into in the last five years in connection with the settlement or other resolution of any Legal Action that (a) restricts has any material continuing obligation, liability or restriction on the ability part of the Company or any of its Subsidiaries;
(vii) (A) all revenue-generating Company Subsidiary Contracts that were entered into after January 1, 2009 or were entered into before January 1, 2009 and remain in effect with the ten largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries in the fiscal year ended December 31, 2010) and that have material, known, unfulfilled obligations on behalf of the customer, and (B) to engage the extent not disclosed pursuant to clause (vii)(A), the ten largest revenue generating Company Contracts (determined on the basis of revenues received by Company or any of its Subsidiaries in the fiscal year ended December 31, 2010);
(viii) all Company Contracts that were entered into after January 1, 2009 or compete were entered into before January 1, 2009 and remain in effect with the ten largest suppliers to the Company and its Subsidiaries (determined on the basis of amounts paid by the Company or any business of its Subsidiaries in any manner the fiscal year ended December 31, 2010) and that is have material, known, unfulfilled obligations on behalf of the supplier. The Company Contracts referred to in clauses (i) through (viii) of this Section 3.18(a) and the Company IP Contracts are collectively referred to in this Agreement as “Company Material Contracts.” The Company has made available to Parent or its Representatives correct and (except for redaction of certain information in certain Company Contracts) complete copies of all Company Material Contracts.
(b) Except for such matters as would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company its Subsidiaries, taken as a whole, (bi) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a all Company Material Adverse EffectContracts are valid and binding, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect and enforceable in accordance with respect their respective terms, except (A) as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws of general application affecting or relating to the Company enforcement of creditors’ rights generally and (B) subject to general principles of equity, whether considered in a proceeding in Law or in equity (the “Bankruptcy and Equity Exception”), (ii) neither the Company Subsidiariesnor any of its Subsidiaries is in violation or breach of, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is in default (with or without notice or the lapse of time, time or both) in breach or default under under, any such Company Contract Material Contracts and, (iii) to the Knowledge of the Company, no other party to any such Company Contract Person is in material violation or breach of, or in default (with or without notice or the lapse of time, time or both) in breach or default thereunder. The under, any Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Zoran Corp \De\)
Contracts. (a) Except for the Contracts filed as exhibits to any Company ReportAll Contracts, or set forth in Section 3.15 of the Company Disclosure Letterincluding amendments thereto, as of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 report of the Company Disclosure Letterfiled on or after January 1, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” 2021 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under promulgated by the Securities Act that has not SEC have been so filed;. All such filed Contracts shall be deemed to have been made available to Parent.
(iib) Other than the Contracts described in Section 3.17(a), Section 3.17(b) of the Company Disclosure Letter sets forth a complete list, in each case as of the date hereof, of each Contract (or the accurate description of principal terms in case of oral Contracts), including all amendments, supplements and side letters thereto that modify each such Contract in any material respect, to which the Company or any of the Company Subsidiary Subsidiaries is a party that or by which it is bound or to which any of their respective assets are subject (a) restricts the ability other than any of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to foregoing solely between the Company and any of the wholly owned Company Subsidiaries or solely between any wholly-owned Company Subsidiaries) that:
(i) is a limited liability company agreement, taken as partnership agreement or joint venture agreement or similar Contract (including Joint Venture Agreements) with a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any (or sets forth material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor terms of any third party that restricts in any material respect the business of the such arrangement);
(ii) is a Material Space Lease, Ground Lease or Material Company and the Company Subsidiaries, taken as a wholeLease;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money contains covenants of the Company or any of the Company Subsidiaries purporting to limit, in any material respect, either the type of business in which the Company or any of the Company Subsidiaries or any of their affiliates may engage or the geographic area in which any of them may so engage, other than exclusive lease provisions, non-compete provisions and other similar leasing restrictions entered into by the Company or a Company Subsidiary in the ordinary course of business, contained in the Material Company Leases or contained in other recorded documents by which real property was conveyed by the Company or any of the Company Subsidiaries to any user;
(iv) evidences Indebtedness for borrowed money in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between 10,000,000 of the Company and or any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries, whether unsecured or secured (such Indebtedness, the “Existing Indebtedness” and such Contracts, the “Existing Loan Documents”);
(v) provides for the pending purchase, sale, assignment or disposition of or Transfer Right to purchase, sell, dispose of or assign, in each material Contract with respect to the creationcase, formationby merger, governance purchase or control sale of assets or stock or otherwise, directly or indirectly, any material partnerships, joint ventures real property (including any Company Real Property or joint ownership arrangements with third partiesany portion thereof);
(vi) each Contract that (A) relates to the acquisition of assets (other than except for any capital contribution requirements as set forth in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) organizational documents of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) set forth in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwiseSection 3.17(b)(vi) of the Company Disclosure Letter or the Company Subsidiaries or in any Joint Venture Agreements, (Cx) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advanceinvestment (in each case, loan or commitment therefor or provide any credit support for or any in the form of a loan, capital contribution to, or similar transaction) in any non-wholly-owned Company Subsidiary or other investment inPerson in excess of $2,000,000 or (y) evidences a loan (whether secured or unsecured) made to any other Person in excess of $1,000,000 (excluding ordinary course extensions of trade credit (such as funding of customer non-recurring charges) or rent relief);
(vii) relates to the settlement (or proposed settlement) of any pending or threatened suit or proceeding, any Person (other than any settlement that provides solely for the payment of less than $1,000,000 in cash (net of any amount covered by insurance or indemnification that is reasonably expected to be received by the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) is with any Contract entered into since January 1, 2016 that relates to the sale, transfer current executive officer or other disposition director of a business or assets by the Company or any Company Subsidiary pursuant to which of the Company Subsidiaries, any shareholder of the Company beneficially owning 5% or more of outstanding Company Shares or, to the Company’s knowledge, any member of the “immediate family” (as such term is defined in Item 404 of Regulation S-K promulgated under the Securities Act) or any Company Subsidiary has affiliate of any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)the foregoing;
(ix) each is a material Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange that relates to material Company IT Assets or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement Intellectual Property (other than Contracts solely between (A) generally commercially available, off-the-shelf licenses or services agreements, with annual aggregate payments in an amount of $1,000,000 or less in fiscal year 2020 or expected in fiscal year 2021 or (B) non-exclusive licenses to customers in the Company and any ordinary course of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiariesbusiness); and;
(x) each Contract with constitutes an interest rate cap, interest rate collar, interest rate, currency or commodity derivative or other contract or agreement relating to a term exceeding one hedging other than power purchases (1A) year after for less than 75% of the date power requirements of this Agreement which a Facility and (B) for periods of less than 12 months in the ordinary course of business;
(xi) relates to a forward equity sale transaction; or
(xii) except to the extent described in clauses (i)-(xi) above, is a financial derivative interest rate hedge with a value in excess binding individual purchase order or statement of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries work that calls for or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to guarantees aggregate payments by the Company and the Company Subsidiaries, Subsidiaries of more than $10,000,000 over the remaining term of such binding individual purchase order or statement of work. Each Contract of a type described in clauses (a) and (b) of this Section 3.17 is referred to herein as a “Company Material Contract.” To the case may be, and to the Knowledge knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of all Company Material Contracts as of the date hereof, including amendments and supplements thereto that modify each such Contract in any material respect.
(c) (i) Neither the Company nor any Company Subsidiary is in (or has received any written claim of) 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, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (ii) to the knowledge of the Company, no other party to any Company Material Contract (other than any Material Space Leases, which are addressed in Section 3.14(e)) is in breach of or default under the terms of any Company Material Contract where such breach or default would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; and (iii) as of the date of this Agreement, each Company Material Contract (includingis a valid and binding agreement of the Company or a Company Subsidiary, for as applicable, and, to the avoidance knowledge of doubtthe Company, all material amendmentsthe other parties thereto and is in full force and effect, modificationssubject to the Bankruptcy and Equity Exception, extensionsin each case except as would not, individually or renewals with respect thereto)in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 4.7 of the Company Disclosure LetterSchedule sets forth a complete and accurate list or description of all Contracts, as except for “click through” end user license agreements entered into in the ordinary course of the date hereof, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts business: (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(iv) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any of its Subsidiaries is either obligated to pay or entitled to receive in excess of $25,000 and that is not otherwise required to be disclosed pursuant to subsections (w), (x), (y) or (z) of this Section 4.7; provided, however, that Section 4.7 of the Company Subsidiary is a party Disclosure Schedule does not omit any Contracts pursuant to which, when viewed collectively, the Company or any of its Subsidiaries are either obligated to pay or entitled to receive in excess of $250,000 in the aggregate; (w) that are not terminable by the Company within ninety (a90) restricts days from the date of this Agreement without penalty or further obligation on the part of the Company or any of its Subsidiaries; (x) that involve payments based on profits or revenues of the Company or any of its Subsidiaries; (y) that are employment, management, consulting or severance agreements or other agreements or arrangements with any of the Company Business Employees or Company Business Independent Contractors (other than offer letters and employee invention and proprietary rights assignment agreements and option agreements, in each case, in the Company’s standard forms previously provided to Buyer); or (z) that include any noncompetition or nonsolicitation covenant or any exclusive dealing or similar arrangement that limits the ability of the Company or any Company Subsidiary of its Subsidiaries or any of their respective Affiliates to engage in compete (geographically or compete otherwise) in any line of business in any manner that (collectively, the “Scheduled Contracts”). As of the date hereof, each of the Contracts is material to the Company a legal, valid and the Company Subsidiaries, taken as a whole, (b) requires binding obligation of the Company or its Subsidiaries (assuming the due authorization, execution and delivery by the other parties thereto) and is in full force and effect and enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors generally and by the availability of equitable remedies (whether in proceedings at law or in equity). Neither the Company nor any Company Subsidiary of its Subsidiaries has received notice of cancellation of or default under or intent to conduct cancel or call a default under any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Contracts. The Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights each of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries has performed all obligations required to be performed by it to date under the Contracts where such nonperformance would result in excess a material breach of Fifty Million Dollars ($50,000,000) in or default under any such Contract, and there exists no event or condition which with or without notice or lapse of time or both would be a material breach or a material default on the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money part of the Company or any of the Company its Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andor, to the Knowledge of the Company, on the part of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Contracts.
Appears in 1 contract
Sources: Merger Agreement (Check Point Software Technologies LTD)
Contracts. (ai) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.1(p) of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is Letter contains a party to, and none of their respective properties or assets is bound by any list of the following categories contracts, correct, current and complete copies of Contracts (each such Contract required which have been made available to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):Purchaser:
(iA) any lease of real property by Four Seasons or any of its subsidiaries, as tenant, with third parties providing for annual rentals of $1,000,000 or more;
(B) any Contract required under which Four Seasons or any of its subsidiaries is obliged to be filed by make payments on an annual basis in excess of $2,500,000 in the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedaggregate;
(iiC) each any partnership, limited liability company agreement, joint venture, alliance agreement or other similar agreement or arrangement relating to the formation, creation, operation, management, business or control of any partnership or joint venture which is not a wholly-owned subsidiary of Four Seasons (other than any such agreement or arrangement relating to the operation or business of a property in the ordinary course and which is not material with respect to such property) where Four Seasons' obligations with respect to any such partnership or joint venture exceed $5,000,000 individually where such obligations arise from Management Agreements or exceed $2,500,000 individually where such obligations do not arise from Management Agreements;
(D) any Contract (other than with or among wholly-owned subsidiaries) under which Indebtedness for borrowed money in excess of $2,500,000 is outstanding or may be incurred or pursuant to which the Company any property or asset of Four Seasons or any Company Subsidiary of its subsidiaries is mortgaged, pledged or otherwise subject to a party that Lien (a) restricts the ability of the Company other than a Permitted Lien), or any Company Subsidiary to engage in or compete in any business in any manner that is material to Contract restricting the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company incurrence of Indebtedness by Four Seasons or any Company Subsidiary wholly-owned subsidiary or the incurrence of Liens (other than Permitted Liens) on any Properties or securities of wholly-owned subsidiaries or restricting the payment of dividends or the transfer of any Owned Real Properties;
(E) except pursuant to conduct any business on a “most favored nations” basis with Management Agreement or any third party agreement relating thereto, any Contract that restricts purports to limit the right of Four Seasons or any of its subsidiaries or affiliates to, in any material respect the business (i) engage in any line of the Company and the Company Subsidiaries, taken as a wholebusiness, or (cii) provides for “exclusivity,” rights of first refusal compete with any person or offer or any similar requirement or right in favor of any third party that restricts operate in any material respect the business of the Company and the Company Subsidiaries, taken as a wholelocation;
(iiiF) each any Contract providing for the sale or exchange of, or option to which the Company sell or exchange, any Company Subsidiary is Property with a party that provides for payments to or from the Company or any its Subsidiaries fair market value in excess of Fifty Million Dollars ($50,000,000) 5,000,000, or for the purchase or exchange of, or option to purchase or exchange, any Property with a fair market value in excess of $5,000,000 entered into in the aggregate after past 12 months or in respect of which the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)applicable transaction has not been consummated;
(ivG) each principal any Contract creatingentered into in the past 12 months or in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, guaranteeing directly or securing Indebtedness for borrowed money indirectly (by amalgamation, merger or otherwise), of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) assets (other than Contracts referenced in clause (F) of this Section 3.1(p)(i)) or capital stock or other equity interests of another person for Indebtedness or Indebtedness solely between the Company and any aggregate consideration in excess of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) $2,500,000, in each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (case other than in the ordinary course of businessbusiness and in a manner consistent with past practice;
(H) each Contract pursuant to which Four Seasons or capital stock any of its subsidiaries or affiliates manages, operates or provides goods or services to or for any hotel, resort, fractional interest program, condominium, development, food and beverage operation or other securities similar business or property of a third party owner (by mergertogether with any Contract related thereto, capital contribution the "MANAGEMENT Agreements"), and each franchise or otherwise) other agreement pursuant to which Four Seasons or any of its subsidiaries grants any Person after the date of this Agreement with rights to a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition third party (other than Four Seasons or any of its wholly-owned subsidiaries) to operate any hotel, resort, fractional interest program, condominium, development, food and beverage operation or other similar business or property utilizing any of the Intellectual Property Rights, other than agreements incidental to the operation of a particular hotel property in the ordinary course of business;
(I) after the date of this except for any radius restrictions contained in any Management Agreement, directly any standstill or indirectly, similar Contract currently restricting the ability of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate Four Seasons or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant its subsidiaries to which the Company or any Company Subsidiary could be required offer to purchase or sellpurchase the assets or equity securities of another person; and
(J) any Contract (other than Contracts referenced in clauses (A) through (I) of this Section 3.1(p)(i)) which has been filed by Four Seasons or its affiliates with Securities Authorities as a material contract and forming part of Four Seasons' Public Disclosure Record (the Contracts described in clauses (A) through (J), as applicabletogether with all exhibits and schedules thereto being, the "MATERIAL CONTRACTS").
(ii) None of Four Seasons or any of its subsidiaries or affiliates or, to the knowledge of Four Seasons, any of the foregoing;
(vii) any Contract that requires the Company other parties thereto, is in breach or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution toviolation of, or other investment default (in each case, with or without notice or lapse of time or both) where such breach or violation of, or default, has resulted in, any Person (other than the Company or any Company Subsidiary) in excess is reasonably likely to result in, a right of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer termination or other disposition material remedy by any party thereto under, any Management Agreement, and none of a business Four Seasons or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date affiliates has received or given any notice of this default under any Management Agreement which is remains uncured and, to the knowledge of Four Seasons, there exists no state of facts which after notice or lapse of time or both would constitute a financial derivative interest rate hedge with a value default or breach of such Management Agreement. All Management Agreements are in excess full force and effect without modification thereto (subject to the effects of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries bankruptcy, insolvency, reorganization, moratorium or solely among its wholly owned Subsidiarieslaws relating to or affecting creditors' rights generally).
(biii) Except as has not and would not have or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ia) each Company Contract is a validnone of Four Seasons, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andits subsidiaries or, to the Knowledge knowledge of the CompanyFour Seasons, any of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiariesbreach or violation of, as the case may beor default (in each case, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, time or both) in breach under, any Contract (other than the Management Agreements) and none of Four Seasons or any of its subsidiaries has received or given any notice of default under any such Company Contract andwhich remains uncured, and (b) to the Knowledge knowledge of the CompanyFour Seasons, there exists no other party to any such Company Contract is (with or without state of facts which after notice or lapse of time, time or both) in both would constitute a default or breach or default thereunder. The Company has made available to Parent true and complete copies of each Company a Material Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect theretoother than a Management Agreement).
Appears in 1 contract
Contracts. (a) Except for Section 3.16 of the Disclosure Schedule sets forth a true, correct and complete list of all of the Contracts filed as exhibits to which Seller or any Company Reportof its Subsidiaries is a Back to Contents party or bound, in each case that are used in, or set forth held for use in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary is a party Business and that relate to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
: (i) any Contract required to be filed by of the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
Acquired Assets; (ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
Assumed Liabilities; (iii) each Contract to which the Company Permits or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
Product Certifications; (iv) each principal Contract creatingcustomer, guaranteeing supply, manufacturing, supplier, vendor or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
similar agreements; (v) each material Contract distributor, distribution, sales representative, commission or similar agreements, (vi) the lease of machinery or office equipment, (vii) the provision by a third party of goods or services for use in the Business, (viii) the sale of products by the Business, (ix) the assignment, license, sublicense or other right to use any Intellectual Property of any Person that is used in the Sold Module Products; (x) any obligation or duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any Liability or provide a right of rescission with respect to the creation, formation, governance infringement or control misappropriation of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) Intellectual Property of any Person after other than the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates Seller or any Selling Subsidiary that is related to the disposition Business; (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(viixi) any Contract that requires the Company joint development or any Company Subsidiary to make any advancejoint venture agreements; (xii) source code escrow agreements; (xiii) employment, loan or commitment therefor or provide any credit support for or any capital contribution toconsulting, non-competition, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates similar agreements relating to the sale, transfer Employees; (xiv) all agreements under which Seller or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its whollySubsidiaries have licensed or granted others rights to use the Assigned Intellectual Property; (xv) any agreements (including without limitation non-owned Subsidiaries compete agreements) restricting in any manner the Seller or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and Business, the Company Subsidiaries, as Acquired Assets or the case may be, and Licensed Intellectual Property or (xvi) any agreement which permits a third party to license any of the Assigned Intellectual Property or permits a third party to license any patents related to the Knowledge of Business for use specifically in the CompanyField. Seller has delivered or cause to be delivered to Purchaser true, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true correct and complete copies of each Company Contract (includinglisted on Section 3.16 of the Disclosure Schedule, for the avoidance of doubt, together with all material amendments, modifications, extensions, or renewals with respect amendments and supplements thereto).
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any the Filed Company ReportSEC Documents, or set forth in Section 3.15 3.11(a) of the Company Disclosure LetterLetter sets forth a correct and complete list, as of the date hereof, neither and the Company nor any Company Subsidiary is a party tohas made available to Parent correct and complete copies, and none of their respective properties or assets is bound by any of the following categories of all Contracts (including all material amendments, modifications, extensions or renewals with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with the terms of each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 with applicable Legal Requirements governing the sharing of the Company Disclosure Letter, a “Company Contract”):
(iinformation) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party as of the date of this Agreement (collectively, the “Company Contracts”):
(i) 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) of Regulation S-K promulgated by the SEC;
(ii) that (a) restricts contain a covenant restricting the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person or in any manner that is material geographic area;
(iii) with any Affiliate of the Company, other than those to which the only parties are the Company and any of the wholly-owned Company Subsidiaries;
(iv) which primarily relates to (A) the granting to the Company and or any Company Subsidiary of any IP License in or to any Company Intellectual Property owned by a third party, with annual license fees of more than $25,000, or (B) the Company Subsidiaries, taken as a whole, (b) requires granting by the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts of any IP License in or to any material respect the business Company Intellectual Property, with annual license fees of the Company and the Company Subsidiariesmore than $25,000, taken as a wholeexcluding “click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or (c) provides the terms of use or service for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeweb site;
(iiiv) each Contract relating to any material joint venture, partnership or other similar arrangement involving co-investment, collaboration or partnering with a third party;
(vi) with a Governmental Entity (other than ordinary course Contracts with Governmental Entities as a customer);
(vii) pursuant to which any Indebtedness of the Company or any Company Subsidiary is a party that provides for payments to outstanding or from the Company may be incurred or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has guaranteed any continuing indemnification, guarantee, “earnout” Indebtedness of any other Person (other than the Company or other contingent, deferred or fixed payment obligations that would reasonably be expected to result any Company Subsidiary and excluding Company trade payables arising in aggregate payments in excess the ordinary course of Twenty-Five Million Dollars ($25,000,000business);
(ixviii) each Contract pursuant to which the Company, any Company Subsidiary or any other party thereto has continuing obligations, rights or interests relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with a term exceeding one (1) year after the date of this Agreement respect to, any product or product candidate for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between which the Company and or any of its whollyCompany Subsidiary is currently engaged in research or development, including manufacture or supply services or Contracts with contract research organizations for clinical trials-owned Subsidiaries or solely among its wholly owned Subsidiaries)related services; and
(xix) each Contract with a term exceeding one which are to any extent executory and relate to (1A) year after the date disposition or acquisition of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (any material assets or properties, other than Contracts solely between dispositions or acquisitions in the Company and ordinary course of business, or (B) any of its wholly-owned Subsidiaries merger or solely among its wholly owned Subsidiaries)other business combination transaction.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each Company Contract is a valid, valid and binding and legally enforceable obligation of on the Company or one of the and each Company Subsidiaries, as the case may be, Subsidiary which is party thereto and, to the Knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity ExceptionsException, (ii) each such Company Contract and is in full force and effect with respect to effect, and the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any each Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default has performed all obligations required to be performed by it before the date hereof under any such each Company Contract and, to the Knowledge of the Company, no each other party to any each Company Contract has performed all obligations required to be performed by it before the date hereof under such Company Contract is Contract, except for such failures to be in compliance as would not, individually or in the aggregate, reasonably be expected to result in an allegation of material breach thereof.
(with or without notice or lapse of time, or bothc) in breach or default thereunder. The Company has made available to Parent true and complete copies not received or enjoyed any benefit, inducement or incentive from any Governmental Entity which will, as a result of each this Agreement or the Transactions or the cessation of the Company’s business operations in the geographic area where they are currently conducted or the termination of all or substantially all Company Contract (includingemployees, for the avoidance of doubtresult in any clawback, all material amendmentsrecapture, modificationsrecoupment, extensionsrepayment obligation, penalty, Tax or renewals with respect thereto)other such liability.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 2.19(a) of the Company Disclosure Letter, as of the date hereofSchedule, neither the Company nor any Company Subsidiary of its subsidiaries is a party to, and none of their respective properties to or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):by:
(i) any employment or consulting Contract required to be filed by the with any officer or director, or any Company as a “material contract” pursuant to Item 601(b)(10) of Regulation Semployee or consultant (excluding offer letters for "at-K under the Securities Act that has not been so filedwill" employees);
(ii) each any Contract or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the Transactions contemplated by this Agreement;
(iii) any Contract of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of Company Products in the ordinary course of business;
(iv) any Contract containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any Contract currently in force relating to the disposition or acquisition by the Company or any of its subsidiaries after the Interim Balance Sheet Date of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any Company Subsidiary is a party that of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries;
(avi) restricts the ability of any dealer, distributor, joint marketing or development Contract currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service, or any Contract pursuant to which the Company Subsidiary or any of its subsidiaries have continuing material obligations to engage jointly develop any Intellectual Property that will not be owned, in whole, by the Company or compete in any business in of its subsidiaries;
(vii) any manner Contract to provide source code to any third party for any product or technology that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, its subsidiaries taken as a whole;
(iiiviii) each any Contract currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) calendar days or less and substantially in the form previously provided to Parent;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit (excluding standard invoice terms for payment of invoices in connection with the sale of Company Products);
(x) any settlement agreement under which the Company has any ongoing obligations;
(xi) any Contract under which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any of its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than subsidiaries (A) Contracts for transportation is committed to provide products or storage of gasservices at a later date at a fixed price, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchaseshas provided products or services, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)but which have not yet been accepted thereunder;
(ivxii) each principal any Contract creating, guaranteeing or securing Indebtedness for borrowed money not otherwise disclosed in Section 2.19 of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to Schedule under which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition consequences of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would default could reasonably be expected to result in aggregate payments have a Material Adverse Effect on the Company;
(xiii) any other Contract or commitment that is of the nature required to be filed by Company as an exhibit to an Annual Report on Form 10-K under the Exchange Act; or
(xiv) any Contract involving in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a 200,000.00 being paid by or to Company over the term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)thereof.
(b) Except as would not have or would not reasonably be expected to have, individually or set forth in the aggregate, a Company Material Adverse Effect, (iSection 2.19(b) each Company Contract is a valid, binding and legally enforceable obligation of the Company Schedule, neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or one default under, and neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the Company Subsidiaries, as the case may be, and, to the Knowledge material terms or conditions of any of the Company, of the other parties thereto, subject in all respects Contracts or commitments to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of which the Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Subsidiary is Schedule (with any such Contract or without notice or lapse of timecommitment, or botha "COMPANY CONTRACT") in breach such a manner as would permit any other party to cancel or default under terminate any such Company Contract andContract, to the Knowledge of the Company, no or would permit any other party to seek material damages or other remedies (for any or all of such Company Contract is (with breaches, violations or without notice or lapse of timedefaults, or both) in breach or default thereunderthe aggregate). The Company has made available to Parent true and complete correct copies of each any Contracts the Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals may have with respect thereto)its top twenty customers and suppliers.
Appears in 1 contract
Sources: Merger Agreement (Avantgo Inc)
Contracts. Schedule 4.12 contains a true and complete list of all Executory Contracts of the following types to which (a) Except for the Contracts filed as exhibits to any Company Report, Seller or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Skyware is a party to, and none of their respective properties (but only if such Contract primarily relates to the Business) or assets is bound by (b) any of the following categories Assets or Skyware Assets is subject:
(a) any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distribution or promotional activities for or on behalf of the Business, or any Contract to act in one of the foregoing specified capacities on behalf of any Person;
(b) any Contract pursuant to which any Seller or Skyware has made or will make loans or advances, or has incurred, or is obligated to incur, Indebtedness or has become a guarantor or surety or pledged its credit for or otherwise become responsible with respect to any undertaking of another Person (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course of business);
(c) any Contract with (i) any Affiliate of any Seller (but excluding any contract with or relating to a Benefit Plan), or (ii) any officer or director of any Seller or Skyware (other than employment agreements or similar arrangements relating to their employment);
(d) any Contract (including a purchase order) with any customer or supplier with whom the Sellers or Skyware have entered into Contracts (including purchase orders), which, in the aggregate, have a commitment of more than $100,000 on an annual basis;
(e) any Contract involving a partnership, joint venture or other cooperative undertaking;
(f) any Contract involving any non-competition or similar restrictions binding on any Seller or Skyware, including with respect to the geographical area of operations or scope or type of business of such Seller or Skyware;
(g) any Contract for any material capital expenditures or material leasehold improvement, in each such Contract required to be filed as an exhibit to case in excess of $100,000;
(h) any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):collective bargaining agreement;
(i) any Contract required to be filed by involving the Company as a licensing, sharing, assignment or transfer of Intellectual Property, except “material contractoff the shelf” pursuant to Item 601(b)(10) of Regulation S-K under commercially available software programs purchased or licensed for less than $100,000 in the Securities Act that has not been so filedaggregate;
(iij) each any Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (containing an A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)▇ Guarantee;
(ivk) each principal Contract creating, guaranteeing any letter of credit utilized in or securing Indebtedness for borrowed money otherwise related to the conduct of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)Business;
(vl) each material any Shared Contract with respect to the creation, formation, governance or control Business Portion of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with which contains a total consideration commitment of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)100,000 on an annual basis; and
(xm) any other Contract that is otherwise material to the operation of the Business. The Sellers have made available to the Purchaser copies of each Contract with a term exceeding one that is listed on Schedule 4.12 (1) year after excluding Contracts that the date of this Agreement which is a financial derivative interest rate hedge with a value Sellers have provided in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiariesredacted form due to confidentiality restrictions).
(b) . Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, andset forth on Schedule 4.12, to the Knowledge of the CompanySellers’ Knowledge, of the other parties thereto, subject in all respects Contracts listed or required to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is be listed on Schedule 4.12 are in full force and effect and are enforceable by the applicable Seller or Skyware, as applicable, in accordance with their terms (subject to the Enforceability Limitations). With respect to the Company and Contracts set forth or required to be set forth on Schedule 4.12: (i) neither the Company Subsidiariesapplicable Seller or Skyware nor, as the case may be, and to the Knowledge Sellers’ Knowledge, any other party thereto, is in default under or in violation of any material term of such Contract; (ii) to the CompanySellers’ Knowledge, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (no event has occurred that, with or without notice or lapse of time, time or both, would constitute such a default or violation; (iii) no Seller or Skyware has released in breach writing or default to the Sellers’ Knowledge orally, any of its rights under any such Company Contract andContract; and (iv) no party to such Contracts has (x) repudiated in writing or, to Sellers’ Knowledge, orally, any of the material terms thereof, (y) or, to the Knowledge of the CompanySellers’ Knowledge, no other party threatened to terminate or cancel any such Company Contract is Contracts or (with or without z) to the Sellers’ Knowledge, provided written notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)that it will not renew any such Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.12 of the Company Disclosure LetterSchedules sets forth a true and correct list, as of the date hereof, neither of the Company nor following Contracts to which any Company Subsidiary Transferred Entity is a party toto or bound by, excluding any open purchase or sales orders entered into in the ordinary course of business, any Intercompany Agreements, any Real Property Leases and none of their respective properties or assets is bound by any of the following categories of Benefit Plan (such Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in disclosed on Section 3.15 3.12 of the Company Disclosure LetterSchedules, a collectively, the “Company ContractMaterial Contracts”):
(i) any Contract required to be filed by the Company as with a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedMaterial Customer;
(ii) each any Contract to which the Company or any Company Subsidiary is with a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeMaterial Supplier;
(iii) each any Contract to which containing any future capital expenditure obligations (including any series of related expenditures) of the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries Business in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)[***];
(iv) each principal any Contract creatingthat is an equity joint venture, guaranteeing strategic alliance, minority equity investment, partnership or securing Indebtedness for borrowed money other similar agreement or that is a Contract concerning the management of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely a Person that is not an individual between the Company a Transferred Entity and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)a third party;
(v) each material any Contract pursuant to which (A) a Transferred Entity (or, with respect to the creationBusiness, formation, governance Sellers or control any of any their Affiliates) licenses from a third party Intellectual Property Rights material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets Business (other than any generally commercially available software or software-as-a-service Contracts that involve aggregate payments of less than [***] per annum and licenses to Intellectual Property Rights which are incidental to the primary purpose of the Contract), (B) a Transferred Entity (or, with respect to the Business, Sellers or any of their Affiliates) licenses to a third party any material Business Owned Intellectual Property (other than licenses to Intellectual Property Rights which are incidental to the primary purpose of the Contract and non-exclusive licenses granted in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate), (BC) relates any Intellectual Property material to the disposition Business is acquired, divested or developed (other than Contracts with employees, contractors, or consultants entered in the ordinary course of business), or (D) after a Transferred Entity (or, with respect to the date Business, Sellers or any of this Agreementtheir Affiliates) is a party or is otherwise bound arising out of or resolving any dispute related to Intellectual Property Rights that relate to the Business, directly such as consent-to-use, covenant-not-to-sue, coexistence, concurrent use, settlement agreements, or indirectlyotherwise materially affecting the ability to use or enforce any material Business Owned Intellectual Property (for the avoidance of doubt, other than non-exclusive licenses granted in the ordinary course of assets business);
(vi) any Contract relating to or evidencing Indebtedness of, or commitments to provide any Indebtedness to, the Transferred Entities in excess of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) [***] in the aggregate with respect to which a Transferred Entity is an obligor or any capital stock guarantor, or other securities (by merger, capital contribution granting a Lien on the assets or otherwise) equity interests of the Company Transferred Entities, other than any Indebtedness to be repaid or extinguished at the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right Closing pursuant to which the Company a Payoff Letter or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoingGuaranty and Lien Releases;
(vii) any Contract that requires (A) relating to the Company acquisition or disposition of, or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person business, corporation, partnership, joint venture or other business (other than the Company whether by merger, sale of stock, sale of assets or any Company Subsidiaryotherwise), or (B) in excess of Twenty-Five Million Dollars ($25,000,000)under which, after Closing, a Transferred Entity will have an outstanding or future obligation with respect to an “earn out,” deferred purchase price contingent purchase price or similar contingent payment obligation;
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer (A) prohibits a Transferred Entity from competing in a particular geographic area or contains exclusivity provisions during any time period; (B) contains “most favored nation” pricing terms or other disposition preferential pricing terms or grants any right of a business first offer, right of first refusal; or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee(C) contains minimum purchase, “earnouttake or pay” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)“requirements” terms;
(ix) each any Contract that is a settlement, conciliation or similar agreement with a term exceeding one (1) year any Governmental Entity or pursuant to which any of the Transferred Entities will have any material outstanding obligation after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andAgreement;
(x) each any Collective Bargaining Agreement;
(xi) any that Contract with that creates a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (Lien, other than Contracts solely a Permitted Lien, on the equity interests of any Transferred Entity or the assets of the Business;
(xii) any material Shared Contract involving (A) expected payments to the Business, or relating to services provided by the Business or (B) expected payments from the Business, or relating to services provided to the Business, in each case, other than those contemplated in the Transition Services Agreement;
(xiii) any Contract between a Transferred Entity, on the Company one hand, and a Seller or any Affiliate of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)a Seller, on the other hand;
(xiv) any material Shared Contract; or
(xv) any Government Contract.
(b) Except as would not have Other than expirations or would not reasonably be expected to have, individually or non-renewals following the date hereof in accordance with the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation terms of the Company or one of the Company Subsidiariesapplicable Material Contract, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Material Contract is in full force and effect in accordance with respect to the Company and the Company Subsidiariesits terms and, as the case may be, and to the Knowledge of Sellers, is valid, binding and enforceable against the Company, the other parties thereto in accordance with its terms, in each case, subject to the General Enforceability Exceptions. No Transferred Entity nor, to the Knowledge of Sellers, any other party to a Material Contract, is in material breach or violation of, or default under, any Material Contract and (iii) none of the Company or any Company Subsidiary is (no event has occurred that with or without notice or lapse of time, time or both) in both would constitute a material breach or default under any such Company Contract and(whether by lapse of time or notice or both). No Transferred Entity nor, to the Knowledge of the CompanySellers, no any other party thereto, has received written notice of any non-renewal or intent to terminate or let lapse any such Company Contract is Material Contract, except as would not have be material to the Business, taken as a whole.
(with or without notice or lapse c) Prior to the execution of timethis Agreement, or both) in breach or default thereunder. The Company has Sellers have made available to Parent Purchaser true and complete correct copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 None of the Company Disclosure Letter, as or any of the date hereof, neither the Company nor any Company Subsidiary its subsidiaries is a party toto or bound by, and none of their respective properties or assets is are bound by or subject to, any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report written or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):oral:
(i) any Contract required not made in the ordinary course of business entered into prior to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) date of Regulation S-K under the Securities Act that has not been so filedthis Agreement;
(ii) each Contract pursuant to which the Company or any of its subsidiaries has agreed not to compete with any person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(iii) Contract pursuant to which the Company Subsidiary or any of its subsidiaries is a party that restricted in any material respect in the development, marketing or distribution of their respective products or services;
(aiv) restricts the ability Contract with (i) any shareholder of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a wholeof its subsidiaries, (bii) requires any affiliate of the Company or any of its subsidiaries, (iii) any current or former director, officer, employee or consultant of the Company Subsidiary or any of its subsidiaries or of any affiliate of the Company or any of its subsidiaries (other than employment agreements referred to conduct in Section 3.01(k));
(v) license or franchise granted by the Company or any of its subsidiaries pursuant to which the Company or such subsidiary has agreed to refrain from granting license or franchise rights to any other person;
(vi) Contract under which the Company or any of its subsidiaries has incurred any indebtedness that is currently owing or given any guarantee in respect of indebtedness;
(vii) Contract creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices);
(viii) material Contract that requires consent of or notice to a third party in the event of or with respect to the Merger or the transactions contemplated by the Stockholders Agreement, including in order to avoid termination of or loss of material benefit under any such Contract;
(ix) Contract providing for payments of royalties to third parties;
(x) Contract granting a third party any license to Intellectual Property, other than Contracts granting licenses to end-user customers for their internal use or solely as necessary for such customers to use the Company's products and services;
(xi) Contract providing confidential treatment by the Company or any of its subsidiaries of third party information, other than (i) non- disclosure agreements entered into by the Company in the ordinary course of business on or (ii) confidentiality agreements entered into prior to the date of this Agreement with respect to Takeover Proposals made prior to the date of this Agreement;
(xii) Contract granting the other party to such Contract or a “third party "most favored nations” basis with nation" status that, following the Merger, would in any way apply to Parent or any of its subsidiaries (other than the Company and its subsidiaries and their products or services (other than any similar products or services produced or offered by Parent or its subsidiaries (other than the Company and its subsidiaries)));
(xiii) Contract that requires any consent (including any consent to assignment), approval, authorization, qualification or order of any Governmental Entity or other third party that restricts in connection with this Agreement and the consummation of the transactions contemplated hereby; or
(xiv) Contract which (i) has aggregate future sums due from the Company or any of its subsidiaries in excess of $50,000 and is not terminable by the Company or such subsidiary for a cost of less than $50,000 or (ii) is entered into prior to the date of this Agreement and is otherwise material respect to the business of the Company and the Company Subsidiariesits subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal as presently conducted or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business as proposed to be conducted. Each Contract of the Company and the Company Subsidiariesits subsidiaries is in full force and effect and is a legal, taken as a whole;
(iii) each Contract to which valid and binding agreement of the Company or any Company Subsidiary is a party that provides for payments such subsidiary and, to or from the knowledge of the Company or any its Subsidiaries in excess such subsidiary, of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (each other than (A) Contracts for transportation or storage of gasparty thereto, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of enforceable against the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiariessubsidiaries, as the case may be, and, to the Knowledge knowledge of the Company, of against the other party or parties thereto, subject in all respects each case, in accordance with its terms, except for such failures to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is be in full force and effect with respect or enforceable that individually or in the aggregate could not reasonably be expected to have a material adverse effect on the Company. Each of the Company and the Company Subsidiariesits subsidiaries has performed or is performing all material obligations required to be performed by it under its Contracts and is not (with or without notice or lapse of time or both) in breach or default in any material respect thereunder, as the case may beand, and to the Knowledge of the Company, the other parties thereto and (iii) none knowledge of the Company or such subsidiary, no other party to any Company Subsidiary of its Contracts is (with or without notice or lapse of time, time or both) in breach or default in any material respect thereunder except, in each case, for such breaches that individually or in the aggregate could not reasonably be expected to have a material adverse effect on the Company. Neither the Company nor any of its subsidiaries knows of any circumstances that are reasonably likely to occur that could reasonably be expected to materially adversely affect its ability to perform its obligations under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Contract.
Appears in 1 contract
Sources: Merger Agreement (Mainspring Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.13(a) of the Company Disclosure LetterSchedule sets forth, as of the date hereofof this Agreement, neither a true and complete list of each Contract of the Company nor or any Company Subsidiary in effect as of the date of this Agreement and that is included within any of the following categories:
(i) all Contracts that purport to limit, curtail or restrict the freedom or right of the Company, any Company Subsidiary or any of the Company’s current or future Affiliates in any material respect to engage or compete in any line of business or market, sell, supply, license or distribute any product or service, in each case, in any market or geographic area, with any Person or during any period of time (or pursuant to which a benefit or right is required to be given or would be lost as a result of so competing, engaging, marketing, selling, supplying, licensing or distributing);
(ii) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any Company Subsidiary;
(iii) any Contract that grants any Person other than the Company or any Company Subsidiary any exclusive license, supply, distribution or other rights;
(iv) any Contract that grants any Person other than the Company or any Company Subsidiary any (A) “most favored nation” or other preferred pricing rights, (B) rights of first refusal, rights of first negotiation or that materially limits or purports to materially limit the ability of the Company or any Company Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses, (C) exclusive rights to purchase any Company Products, (D) any Contract with a subscription period, or which obligates Company to provide supply or services for a period, greater than three years, or (E) right to require the Company or any Company Subsidiary to purchase all or any portion of the Company’s or a Company Subsidiary’s requirements from any third party;
(v) any Contract that obligates the Company or any Company Subsidiary to (A) provide maintenance and/or support with respect to any discontinued Company Product or any prior version of any Company Product for more than 12 months following the release of a replacement product or new version of a Company Product, as applicable or (B) maintain interoperability or compatibility of any of the Company Products or services with any technology, products or services of any other Person;
(vi) any Contract relating to the disposition or acquisition by the Company or any Company Subsidiary of any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into since January 1, 2015, (B) that contains “earn-out” provisions or other payment (including contingent payment) or holdback obligations that are or may be payable after the date of this Agreement or (C) that contains ongoing non-competition, indemnification obligations or other ongoing obligations that are material to the Company and the Company Subsidiaries, taken as a whole;
(vii) any Contract (A) governing the terms of any existing equity or debt investment by the Company or any Company Subsidiary in excess of $1,000,000 or (B) providing for ongoing capital commitments (including any obligation to provide funds, or make an investment, in the form of a loan, capital contribution or otherwise), other than, in each case, any such Contract between the Company and any direct or indirect wholly-owned Company Subsidiary, or between direct or indirect wholly-owned Company Subsidiaries (“Intercompany Contracts”);
(viii) any Indebtedness under which the currently outstanding maximum obligation of the Company and the Company Subsidiaries is $1,000,000 or greater, whether secured or unsecured, excluding any Indebtedness pursuant to Intercompany Contracts;
(ix) any Indebtedness under which the currently outstanding maximum obligation owed to the Company and the Company Subsidiaries is $1,000,000 or greater, whether secured or unsecured, excluding any Indebtedness pursuant to Intercompany Contracts ;
(x) any lease, sublease or other Contract relating to the occupancy of the Leased Real Property involving payments by the Company or the Company Subsidiaries in excess of $500,000 in 2015 or any year thereafter;
(xi) any general or limited partnership, joint venture or joint development Contract;
(xii) any Contract relating to the settlement of any civil, administrative or judicial Action or investigation within the past five years other than any such Contract that provided solely for payment(s) of less than $250,000 in addition to other customary terms for settlement agreements, such as settlement and release provisions and confidentiality obligations, in each case that does not restrict the operation of the business conducted or to be conducted by the Company or the Company Subsidiaries, and that has not otherwise been material to the business of the Company or the Company Subsidiaries;
(xiii) any (A) standstill or similar agreement restricting any Person from acquiring the securities of, soliciting proxies respecting, or affecting the control of, any other Person, or (B) Contract requiring the Company or any Company Subsidiary to provide any notice or information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal or prior to entering into any discussions or Contract relating to any Acquisition Proposal or similar transaction;
(xiv) any Government Contract or open or outstanding Government Bid or any Contract incorporating government acquisition terms (e.g., in the U.S., the Federal Acquisition Regulation or the Defense Federal Acquisition Regulation Supplement);
(xv) each Contract that involves performance of custom Software development services by the Company or any Company Subsidiary (excluding, for the avoidance of doubt, implementation, configuration, maintenance and support, or training or other non-custom services related to the Company Products provided to customers, sublicensors, value added resellers, systems integrators or other distributors or resellers in the ordinary course of business), expressly providing for either (A) recurring annual payments to the Company or any of the Company Subsidiaries after the date of this Agreement of $250,000 or more or (B) aggregate payments or potential aggregate payments to the Company and the Company Subsidiaries after the date of this Agreement of $500,000 or more;
(xvi) any Contract, other than a Contract for Commercially Available Software, providing for the purchase by or license to (or for the benefit or use of) the Company or any Company Subsidiary of any Software, content (including textual content and visual, photographic or graphical content), technology or Intellectual Property, which Software, content, technology or Intellectual Property is incorporated (or is contemplated by the Company or any Company Subsidiary to be incorporated) into any Company Product sold by the Company or any Company Subsidiary, and is material with respect to any such Company Product;
(xvii) each Patent cross-license;
(xviii) any Contract with (A) any of the 50 largest customers determined on the basis of the annual contract value of the Contracts with such customer determined as of the four consecutive fiscal quarters ended September 30, 2017, (B) any of the top 13 resellers and distributors (including original equipment manufacturers) determined on the basis of the annual contract value of the accounts generated by such resellers and distributors in the four consecutive fiscal quarters ended December 31, 2017 (the customers, resellers and distributors referenced in clauses (A) and (B) above, each, a “Significant Customer”), (C) any of the 15 largest suppliers and the 10 largest licensors of Intellectual Property, in each case determined on the basis of aggregate payments made or owed by the Company and the Company Subsidiaries in the four consecutive fiscal quarters ended December 31, 2017, or (D) any of the top 10 referral partners or systems integrators determined on the basis of the annual contract value of the accounts generated by such referral partners in the four consecutive fiscal quarters ended December 31, 2017 (other than as would be disclosed against clauses (A), (B) or (C) above without regard to the quantity limitations referenced therein);
(xix) except as otherwise listed in response to this Section 3.13(a), and excluding Intercompany Contracts, any Contract that involves payments by or to the Company or any of the Company Subsidiaries of more than $1,000,000 over the four consecutive fiscal quarters ended September 30, 2017;
(xx) any Contract pursuant to which the Company or any of the Company Subsidiaries has agreed or is required to provide any third party with rights in or access to Company Source Code (including on a contingent basis), or to provide for Company Source Code to be put in escrow;
(xxi) any Contract for the development for the benefit of the Company or any Company Subsidiary by any party other than the Company or a Company Subsidiary, of technology or Intellectual Property that is material to any Company Product.
(xxii) any Contract providing for (A) indemnification of any Person (i) with respect to material Liabilities relating to any current or former business of the Company, any of the Company Subsidiaries or any predecessor Person, other than indemnification obligations of the Company or any of the Company Subsidiaries pursuant to the provisions of a Contract entered into by the Company or any of the Company Subsidiaries in the ordinary course of business consistent with past practice or that would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole, or (ii) with respect to claims involving infringement, misappropriation or other violation of any Intellectual Property rights of any third Person, other than indemnification obligations of the Company or any of the Company Subsidiaries pursuant to the provisions of a Contract entered into by the Company or any of the Company Subsidiaries in the ordinary course of business consistent with past practice; or (B) any guaranty under a Contract related any tangible assets by the Company or any Company Subsidiary that is material to the Company or any Company Subsidiary (in each case with respect to which the Company or any Company Subsidiary has continuing obligations as of the date of this Agreement);
(xxiii) any Contract (A) with providers of co-location or data hosting services, including with respect to the provision of Company Products, or (B) with material application services providers, in each case, whose services are material to the Company and the Company Subsidiaries, taken as a whole;
(xxiv) any Contract pursuant to which the Company or any Company Subsidiary is a party toauthorized to market, and none distribute or resell any product, service or Intellectual Property of their respective properties any third party, other than pursuant to licenses to Commercially Available Software;
(xxv) any Contract that limits or assets is bound by any purports to limit the ability of the following categories Company, any Company Subsidiary or any current of Contracts future Affiliate of the Company to collect, receive, derive, access, store, retain, destroy, transmit, transfer (each such including cross-border transfers), disclose or use Personal Information to an extent greater than (A) as set forth on the Company’s standard form of customer agreement or (B) imposed under applicable Privacy and Security Laws;
(xxvi) any Contract required pursuant to be filed as an exhibit which (A) the Company or any Company Subsidiary has agreed to any restriction on the right of the Company or any Company Subsidiary to enforce any Intellectual Property rights, the effect of which is material to the business of the Company or any Company Subsidiary, other than pursuant to Outbound License Agreements and Services Agreements, or (B) the Company or any Company Subsidiary has agreed to transfer or sell rights in or with respect to any Company Report Owned Intellectual Property;
(xxvii) any other Contract under which the consequences of a default or listed breach or early termination would have or would reasonably be expected to have, individually or in Section 3.15 the aggregate, a Company Material Adverse Effect;
(xxviii) any Contract pursuant to which the terms and conditions thereof or any information or data contained therein are deemed classified pursuant to the rules and regulations of any Governmental Entity;
(xxix) any Contract with any director, officer or other Affiliate (other than the Company or any Company Subsidiary) of the Company;
(xxx) any Contract pursuant to which the Company or any Company Subsidiary authorizes a third party to sell Company Products under its own brand without any branding of the Company Disclosure Letter, or a “Company Contract”):Subsidiary;
(ixxxi) any Contract that would prohibit the Company from providing the information described in Section 5.03(b) or Section 5.03(c) to Parent; and
(xxxii) all other Contracts 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 that has not been so filed;
(ii) each Contract to which or disclosed by the Company on a Current Report on Form 8-K, whether or any Company Subsidiary is a party that (anot so filed or disclosed. Each Contract disclosed in Section 3.13(a) restricts the ability of the Company Disclosure Schedule, required to be disclosed pursuant to this Section 3.13(a) or any Company Subsidiary that would have been required to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business be so disclosed if it had existed on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement is referred to herein as a “Company Material Contract.” True and complete copies (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect except as redacted to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwiseextent permitted under this Agreement) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the each Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Material Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets have been made available by the Company to Parent in the electronic dataroom maintained by the Company, or any Company Subsidiary pursuant publicly filed with the SEC prior to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)hereof.
(bi) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Each Company Material Adverse Effect, (i) each Company Contract is a validlegal, valid and binding and legally enforceable obligation of the Company or one of the a Company Subsidiaries, as the case may be, Subsidiary and, to the Knowledge of the Company, of the other party or parties thereto, enforceable in accordance with its terms, subject in all respects to the Bankruptcy and Equity Exceptionseffect of any applicable bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors’ rights generally; (ii) each such Company Material Contract is in full force and effect with respect and upon consummation of the Merger shall continue to be in full force and effect without any penalty, acceleration, termination, repurchase right or other adverse consequence; (iii) each of the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any each Company Subsidiary is (with or without notice or lapse of time, or both) has performed all obligations required to be performed by it under each Company Material Contract in breach or default under any such Company Contract all material respects and, to the Knowledge of the Company, no each other party to each Company Material Contract has performed all obligations required to be performed by it under such Company Material Contract in all material respects; (iv) none of the Company nor any Company Subsidiary has Knowledge of, or has received notice of, any violation or default under any Company Material Contract; and (v) neither the Company nor any Company Subsidiary has received any notice from any other party to any such Company Material Contract is (with or without notice or lapse of timeto the effect that, and otherwise has no Knowledge that, such party intends to terminate prior to its stated term, or both) in breach or default thereunder. The not renew, any such Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Contracts. Set forth in Schedule 4.1(n) hereto (a) Except for the Contracts filed as exhibits with Section references corresponding to any Company Report, or those set forth in Section 3.15 of the Company Disclosure Letter, below) is a complete and correct list as of the date hereofhereof of all written or oral agreements, neither contracts and commitments, with an annual cost or benefit to any of the Company nor Companies of, unless otherwise indicated, $50,000 or more (the "Contracts"), to which any Company Subsidiary of the Companies is a party to, and none of their respective properties or assets is bound by which any of the following categories of Contracts (each such Contract required to be filed Companies is bound or otherwise affected as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement hereof (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of insurance contracts sold by the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of businessbusiness or any agreements or contracts listed on another schedule to this Agreement), including: (i) mortgages, indentures, security agreements, loan and credit agreements and other agreements and instruments relating to the borrowing of money or capital stock evidence of credit where any of the Companies is debtor, (ii) agreements or other securities arrangements with insurance agents and agencies and third party administrators pursuant to which any of the Subsidiaries thereof has paid $100,000 or more in commissions or other consideration during the calendar year 1997 or 1998, (iii) contracts for the provision of data-processing services, (iv) finder's, franchise, distribution, sales or brokerage agreements, (v) contracts or options to purchase or sell real property, (vi) contracts for the purchase of materials, supplies or equipment, or for providing services, (vii) contracts, arrangements or treaties with any party regarding reinsurance, excess insurance, ceding of insurance, assumption of insurance, or indemnification with respect to insurance currently being provided directly or indirectly by mergerany Subsidiary or regarding the management of any portion of its business or regarding the sale by it of its products through any other company or the sale by any other company of its products through it which have been entered into on or after January 1, capital contribution 1998, (viii) contracts with any entity that is an Affiliate of the Companies or otherwisewith any officer or director of any of the Companies or any officer or director of any other entity that is an Affiliate of the Companies, or to the knowledge of any executive officer of Target, any corporation controlled by such officer or director, (ix) agreements and instruments representing loans or commitments to loan to officers, directors, employees or agents (other than insurance agents) of any Person after of the date Companies or of this Agreement with a total consideration any entity that is an Affiliate of more than Twenty-Five Million Dollars ($25,000,000) in any of the aggregateCompanies, (Bx) relates to the disposition (other than in the ordinary course contracts of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant kind to which the Company United States government or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries agencies is a party, or solely among its wholly owned Subsidiaries); and
under any federal, state or local law, regulation or executive order, (xxi) each Contract with a term exceeding one partnership or joint venture agreements of any kind and (1xii) year other agreements, contracts and commitments. Target has delivered or made available, or promptly after the date execution hereof will deliver or make available, to Acquisition complete and correct copies of this Agreement which is a financial derivative interest rate hedge all written Contracts together with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between all amendments thereto and waivers and consents with respect thereto. In addition, Target has made available, or promptly after the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effectexecution hereof will make available, (i) all insurance policy forms used for products currently marketed by each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company SubsidiariesSubsidiaries in its business and that are currently in force, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) all forms of agreements or other arrangements with insurance agents and agencies used by each Subsidiary in its business. All of such Company Contract is Contracts are in full force and effect and each party thereto has performed in all material respects all of the obligations required to be performed by them to date and are not in default thereunder in any material respect. No Contract to which any of the Companies is a party, or by which any of the Companies or any of its respective properties is bound, specifically limits any of the Companies' freedom to compete in any line of business or with any person or entity. None of the Companies has outstanding any power of attorney other than customary in the insurance industry to permit agents to execute binders. All contracts, arrangements or treaties to which any of the Companies is a party regarding reinsurance, excess insurance, ceding of insurance, assumption of insurance or indemnification with respect to insurance are either listed on Schedule 4.1(n) hereto or are listed on Schedule F to each Subsidiary's annual statement filed with the Texas Department with respect to the Company and the Company Subsidiariesyear ended December 31, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)1998.
Appears in 1 contract
Sources: Merger Agreement (American Indemnity Financial Corp)
Contracts. (ai) Except for the Contracts filed as exhibits to any Company Reportthe Filed SEC Documents, or set forth in Section 3.15 none of the Company Disclosure Letter, as or any of the date hereof, neither the Company nor any Company Subsidiary its subsidiaries is a party toto or bound by or otherwise has rights or benefits under, and none of their respective properties or assets is are bound by or subject to, any of the following categories of Contracts (each such Contract that are required to be filed as an exhibit to any Company Report or listed Filed SEC Document under the Exchange Act. Except for Contracts (including any Contract which is substantially similar to any form of Contract so filed) filed in Section 3.15 unredacted form as exhibits to the Filed SEC Documents, as of the date of this Agreement, none of the Company Disclosure Letteror any of its subsidiaries is a party to or bound by or otherwise has rights or benefits under, a “Company Contract”):and none of their respective properties or assets are bound by or subject to, any:
(iA) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any of its subsidiaries has agreed not to compete with any person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(B) Contract providing for “exclusivity” or any similar requirement, the terms of which provide that after the Closing Parent or any of its subsidiaries (including the Company Subsidiary and its subsidiaries) would be restricted with respect to the development, manufacture, marketing or distribution of their respective products or services;
(C) material Contract with (I) any affiliate of the Company or any of its subsidiaries, (II) any Company Personnel, (III) any union or other labor organization or (IV) any affiliate of any such person (other than, in each case (w) Contracts on arm’s length terms with companies whose common stock is publicly traded, (x) offer letters, employment agreements or consulting agreements providing solely for “at will” employment with no right to severance benefits except as required by applicable Law, (y) invention assignment and confidentiality agreements relating to the assignment of inventions to the Company or any of its subsidiaries not involving the payment of money and (z) Benefit Plans and Benefit Agreements referred to in Section 3.01(m));
(D) license or franchise granted by the Company or any of its subsidiaries pursuant to which the Company or any such subsidiary has agreed to refrain from granting license or franchise rights to any other person;
(E) Contract under which the Company or any of its subsidiaries has (i) incurred any indebtedness that is currently owing or (ii) given any guarantee in respect of indebtedness, other than in the case of clause (i) or (ii), indebtedness that constitutes a capital lease obligation of the Company or any of its subsidiaries entered into in the ordinary course of business consistent with past practice;
(F) Contract creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Liens created or granted in the ordinary course of business consistent with past practice which are not material to the Company and its subsidiaries or their businesses;
(G) material Contract (other than any Contract with Parent or any of its subsidiaries) containing any provisions (x) dealing with a “change of control” or similar event with respect to the Company or any of its subsidiaries, (y) requiring consent, approval or waiver of, or notice to, a Governmental Entity or other third party in the event of or with respect to the transactions contemplated by this Agreement or the Stockholders Agreement or (z) having the effect of providing that the consummation of any of the transactions contemplated by this Agreement or the Stockholders Agreement or the execution, delivery or effectiveness of this Agreement or the Stockholders Agreement will conflict with, result in a violation or breach of, or constitute a default (awith or without notice or lapse of time or both) under, such Contract or give rise under such Contract to any right of, or result in, a termination, right of first refusal, amendment, revocation, cancellation or acceleration, or a loss of a material benefit or the creation of any Lien upon any of the properties or assets at the Company, Parent or any of their respective subsidiaries, or to any increased, guaranteed, accelerated or additional rights or entitlements of any person;
(H) material Contract granting a third party any license to Intellectual Property that is not limited to the internal use of such third party, other than in the ordinary course of business consistent with past practice;
(I) material Contract pursuant to which the Company or any of its subsidiaries has been granted any license to Intellectual Property;
(J) material Contract providing for payments of royalties or other license fees to third parties;
(K) Contract granting the other party to such Contract or a third party “most favored nation” status that, following the Merger, would in any way apply to Parent or any of its subsidiaries;
(L) Contract that restricts the ability of the Company or any of its subsidiaries to (i) conduct any part of its operations outside the United States or (ii) outsource any of its operations to a third party (any such Contract described in clause (i) or (ii), an “Outsourcing Agreement”);
(M) Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company Subsidiary or any of its subsidiaries;
(N) Contract for any joint venture or general or limited partnership agreement;
(O) material Contract for any joint development, or marketing arrangements or resale or distribution arrangement relating to engage any product or service;
(P) Contract with any Governmental Entity;
(Q) Contract entered into in the last two years in connection with the settlement or compete other resolution of any suit, claim, action, investigation or proceeding, that (1) provides or provided for payments by the Company to any third party in excess of $50,000, (2) provides or provided for the compromise or waiver by the Company of its rights to more than $250,000 of any business obligations owing to the Company by any third party and (3) provides for ongoing obligations on the part of the Company or any third party other than terms providing for confidentiality or non-disparagement;
(R) Contract between the Company or any of its subsidiaries and any of the ten largest customers of the Company and its subsidiaries (determined on the basis of revenues received by the Company or any of its subsidiaries in the four consecutive fiscal quarter period ended September 30, 2004 (the “Major Customers,” and each such Contract, a “Major Customer Contract”);
(S) Contract between the Company or any manner that of its subsidiaries and any of the ten largest suppliers of goods or services to the Company and its subsidiaries (determined on the basis of amounts paid by the Company or any of its subsidiaries in the four consecutive fiscal quarter period ended September 30, 2004 (the “Major Suppliers,” and each such Contract, a “Major Supplier Contract”); and
(T) Contract which (I) has aggregate future sums due from the Company or any of its subsidiaries in excess of $100,000 and is not terminable by the Company or any such subsidiary (x) for a cost of less than $100,000 and (y) on 90 (or fewer) days’ notice or (II) is entered into prior to the date of this Agreement and is material to the business of the Company and the Company Subsidiariesits subsidiaries, taken as a whole, as presently conducted or as proposed to be conducted and is, in each case, not otherwise listed in Sections 3.01(i)(i)(A) through (bS) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business (T)(I) of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Disclosure Letter. Each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries its subsidiaries is in excess of Twenty-Five Million Dollars full force and effect ($25,000,000except for those Contracts that have expired in accordance with their terms) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creationis a legal, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets valid and binding agreement of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiariessubsidiaries, as the case may be, and, to the Knowledge knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to enforceable against the Company and the Company Subsidiariesor such subsidiary, as the case may be, and and, to the Knowledge knowledge of the Company, against the other party or parties thereto thereto, in each case, in accordance with its terms, except for such failures to be in full force and (iii) none effect, to be legal, valid and binding or to be enforceable that individually or in the aggregate are not reasonably likely to have a material adverse effect on the Company and, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to the enforcement of creditors’ rights generally and by general principles of equity. Each of the Company and its subsidiaries has performed or is performing all material obligations required to be performed by it under its Contracts and is not (with or without notice or lapse of time or both) in breach or default in any Company Subsidiary material respect and has not waived or failed to enforce any material rights thereunder, and, to the knowledge of the Company, no other party to any of its Contracts is (with or without notice or lapse of time, time or both) in breach or default under in any such Company Contract material respect thereunder and, to the Knowledge knowledge of the Company, there has occurred no other party to any such Company Contract is event giving (with or without notice or lapse of time, time or both) to others any right of termination, amendment or cancellation of any such Contract except, in breach each case, for such breaches, defaults, waivers or default thereunderfailures that individually or in the aggregate are not reasonably likely to have a material adverse effect on the Company. To the knowledge of the Company, there are no circumstances that are reasonably likely to occur that could reasonably be expected to adversely affect the ability of the Company or any of its subsidiaries to perform its obligations under any material Contract except for such circumstances that individually or in the aggregate are not reasonably likely to have a material adverse effect on the Company.
(ii) The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendmentsContracts of the Company and any of its subsidiaries, modificationsincluding copies of any (A) Outsourcing Agreements, extensions(B) Major Customer Contracts and (C) Major Supplier Contracts. As of the date hereof, the Company has disclosed to Parent the material terms and status of all negotiations in respect of any proposed material Contracts with any Major Customer or Major Supplier and none of the Major Customers or Major Suppliers has terminated or failed to renew, or renewals with respect thereto)is currently negotiating any material amendment to, any of the Major Customer Contracts or Major Supplier Contracts.
Appears in 1 contract
Sources: Merger Agreement (Corio Inc)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 2.12(a) of the Company Bio Companies Disclosure Letter, Letter sets forth a correct and complete list as of the date hereofof this Agreement, neither and the Company nor has made available to Purchasers and their Representatives correct and complete copies of all Contracts (including all material amendments, modifications, extensions or renewals with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with the terms of each such Contract or with applicable Laws governing the sharing of information) to which any Company Subsidiary of the Bio Companies is a party to(collectively, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company ContractBio Companies Contracts”):
(i) any Contract required to be filed by with distributors, dealers, manufacturer’s representatives or sales agencies, the Company as a “material contract” performance of which will involve the payment or potential payment, pursuant to Item 601(b)(10) the terms of Regulation S-K under the Securities Act that has not been so filedany such Contract, by or to any Bio Company of more than US $200,000 annually;
(ii) each Contract to which the Company or any Company Subsidiary is that contain a party that (a) restricts covenant restricting the ability of any of the Company or any Company Subsidiary Bio Companies to engage in or compete in any business or with any Person or in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholegeographic area;
(iii) each Contract to which with any Subsidiary or Affiliate of the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation any of the Bio Companies and other than employment or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇compensation-related Contracts);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of which primarily relate to (A) the Company or granting to any of the Company Subsidiaries Bio Companies of any IP License in excess of Twenty-Five Million Dollars or to any Bio Companies Intellectual Property owned by a third party which is material to the Bio Companies Business, or ($25,000,000B) (other than Contracts for Indebtedness or Indebtedness solely between the Company and granting by any of its whollythe Bio Companies of any IP License to a third party (including another Bio Company) in or to any Bio Companies Intellectual Property which is material to the Bio Companies Business, in each of clause (A) and (B) above, excluding “click-owned Company Subsidiaries wrap” or between “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or the wholly-owned Company Subsidiaries)terms of use or service for any web site;
(v) each material Contract with respect relating to the creation, formation, governance or control of any material partnershipsjoint venture, joint ventures partnership or joint ownership arrangements other similar arrangement involving co-investment with a third partiesparty;
(vi) each Contract that (A) relates to the acquisition of assets with a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer) which imposes any material obligation or restriction on any of the Bio Companies;
(vii) pursuant to which any indebtedness for borrowed money of any of the Bio Companies is outstanding or may be incurred (other than indebtedness between Bio Companies) or pursuant to which any of the Bio Companies has guaranteed any indebtedness for borrowed money of any other Person (other than one of the Bio Companies) or under which any of the Bio Companies have imposed a Lien on any of its assets, tangible or intangible (other than trade payables arising in the ordinary course of business);
(viii) relating to (A) the future disposition or capital stock or other securities (by merger, capital contribution or otherwise) acquisition of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) assets or properties individually or in the aggregate, (B) relates aggregate material to the disposition (Bio Companies Business, other than dispositions or acquisitions in the ordinary course of business, and (B) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock merger or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)combination;
(ix) each Contract with a term exceeding one that (1A) year involve the payment or potential payment, pursuant to the terms of any such Contract, by or to any Bio Company of more than US $300,000 annually and (B) cannot be terminated within ninety (90) days after the date giving notice of this Agreement for future purchases, exchange termination without resulting in any material cost or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement penalty to any Bio Company (other than Contracts solely between Bio Companies Plans and leases listed in Section 2.16 of the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned SubsidiariesBio Companies Disclosure Letter); and;
(x) each Contract with relating to any collective bargaining agreement, excluding any plan, program or arrangement required to be maintained or contributed to by applicable Law or by national labor agreements;
(xi) providing for the employment of any individual on a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value full-time, part-time, consulting or other basis providing annual base salary in excess of Ten Million Dollars US $100,000 or providing severance benefits;
(xii) under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) providing for any settlement, conciliation or similar agreement, the performance of which will involve payment after the Balance Sheet Date of consideration in excess of US $10,000,000100,000;
(xiv) providing for any advancement or loan to any directors, officers or employees of any of the Bio Companies; or
(xv) providing for any advancement or loan to any other Person of amounts in the aggregate exceeding US $50,000, other than Contracts solely between the Company and any of its wholly-owned Subsidiaries intercompany advancements or solely among its wholly owned Subsidiaries)loans.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Each Bio Companies Contract is a valid and binding on any Seller and Bio Company which is party thereto and, to the Knowledge of the Sellers, each other party thereto, and is enforceable and in full force and effect. Each Bio Companies Contract will continue to be valid, binding binding, enforceable and legally enforceable obligation in full force and effect on identical terms immediately following the consummation of the Bio Companies Transactions. The applicable Seller or Bio Company or one has performed all obligations required to be performed by it prior to the date hereof under each Bio Companies Contract and, to the Knowledge of the Sellers, each other party to each Bio Companies Contract has performed all material obligations required to be performed by it prior to the date hereof under such Bio Companies Contract. No Seller or Bio Company Subsidiariesand, as to the case may beKnowledge of the Sellers, no other party is in breach or default under any Bio Companies Contract, and, to the Knowledge of the CompanySellers, of the other parties theretono event has occurred that constitutes or, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in would constitute, a breach or default under or permit any such Company Contract and, to the Knowledge of the Company, no other party to terminate, modify or accelerate any such Company Contract is (with or without notice or lapse provisions of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)a Bio Companies Contract.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.15(a) of the Company Disclosure LetterLetter sets forth, as of the date hereofAgreement Date, neither the Company nor any Company Subsidiary is a party to, an accurate and none of their respective properties or assets is bound by any complete list of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letteror any Company Subsidiary, a “Company Contract”):
and (i) other than any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filedfiled with the SEC in unredacted form prior to the Agreement Date) the Company has Made Available accurate and complete copies of each such Contract:
(i) each Contract (A) that resulted in aggregate payments by the Company or the Company Subsidiaries in excess of R$5,000,000 in the Company’s fiscal year ended December 31, 2022 or (B) under which the Company or any of its Subsidiaries is contractually obligated to make payments in excess of R$5,000,000 in the aggregate after the Agreement Date;
(ii) any Contract providing for (A) a license, covenant not to sue or other right granted by any third party under any material Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to sue or other right granted by the Company or any of its Subsidiaries to any third party under any material Intellectual Property, other than agreements for off-the-shelf Software or licenses with respect to the Company brands to partner schools, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any material Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of material Intellectual Property, in each Contract case of clauses (A) through (D), in excess of R$200,000;
(iii) all leases, subleases, sub-subleases and licenses to which the Company or any Company Subsidiary is a party that with respect to real property (a) restricts the ability of the Company or any Company Subsidiary to engage “Real Estate Leases”), in or compete in any business in any manner each case, that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, its Subsidiaries taken as a whole;
(iiiiv) each all leases of personal property involving annual payments in excess of R$10,000;
(v) any Contract relating to the disposition by the Company or any of the Company Subsidiaries of any material business or material assets (whether by merger, sale of shares, sale of assets or otherwise) under which the Company or any Company Subsidiary is a party that provides for payments has material obligations remaining to be performed or from material liabilities continuing after the Agreement Date other than the sale of products or services in the ordinary course of business;
(vi) any Contract relating to the acquisition by the Company or any its of the Company Subsidiaries in excess of Fifty Million Dollars any material business or assets ($50,000,000) whether by merger, sale of shares, sale of assets or otherwise), other than purchases of supplies, inventory and equipment in the aggregate after ordinary course of business, that contain any outstanding non-competition, earn-out or other contingent payment obligations or any other outstanding material obligation of the date Company or any of this Agreement the Company Subsidiaries;
(other than vii) any Contract for a material joint venture, partnership, strategic alliance or similar agreement or arrangement (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy excluding licensing and (C) financial derivative interest rate ▇▇▇▇▇▇collaboration agreements);
(ivviii) each principal Contract creating, guaranteeing or securing pursuant to which any amount of Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (R$1,000,000 is outstanding or may be incurred by its terms, other than Contracts for Indebtedness or Indebtedness any such agreement solely between or among the Company and any of its wholly-the wholly owned Company Subsidiaries or between the wholly-or among wholly owned Company Subsidiaries);
(vix) each material any Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets granting a Lien (other than in a Permitted Lien) over the ordinary course of business) material property or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or any of the Company Subsidiaries;
(x) other than with Parent or any of its Affiliates, any shareholders’, investors rights’, registration rights or similar Contract that provides for voting obligations, registration rights, sale restrictions or transfer restrictions with respect to any equity securities or voting interests in the Company or a Company Subsidiary, providing any Person with any preemptive right, right of participation, information right or similar right with respect to any equity securities or voting interests in the Company or a Company Subsidiary, or providing the Company or a Company Subsidiary with any right of first refusal with respect to, or right to repurchase or redeem, any equity securities or voting interests in the Company or a Company Subsidiary, other than, with respect to any right to repurchase or redeem equity securities in the Company, in connection with any Company Equity Award issued under the Company Share Plan;
(xi) any material Contract (A) containing any provision or covenant that materially limits the freedom of the Company or any of the Company Subsidiaries to (x) sell any products or services of or to any other Person or in any geographic region, (y) engage in any line of business, or (z) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries, other than Contracts containing customary provisions restricting solicitation or hiring of employees or contractors and agreements with recruiting agencies pursuant to which such agencies are granted the exclusive right to identify candidates for employment, (B) requiring the Company or a Company Subsidiary to deal exclusively with, or to purchase its total consideration requirements of any product or service from, a third party or that contain “take or pay” provisions or that provide rights of first refusal, first offer or similar preferential rights to any supplier, distributor or contractor, or (C) containing a “most-favored-nation,” or best pricing or other similar term or provision; and
(xii) each Contract between the Company or any of the Company Subsidiaries, on the one hand, and, on the other hand, any (A) present executive officer or director of either the Company or any of the Company Subsidiaries, or, to the Company’s Knowledge, any of their immediate family members or any entity in which such executive officer or director or his or her immediate family member has a material economic interest (other than customary indemnification agreements with the Company’s directors and officers that are substantially consistent with the form of indemnification agreement with directors and officers filed as an exhibit to the Company SEC Documents prior to the Agreement Date) or (B) record or beneficial owner of more than Twenty-Five Million Dollars 5% of the Common Shares outstanding as of the Agreement Date ($25,000,000) in the aggregate other than Parent or any capital stock or other securities (by merger, capital contribution or otherwiseof its Affiliates); provided that the following Contracts will not be required to be listed on Section 3.15(a) of the Company Disclosure Letter, will not be required to be made available to Parent pursuant to this Section 3.15(a), and will not be deemed a “Material Contract” for any purposes hereunder (whether or not a Filed Company Contract): (1) any Company Benefit Plan, (2) any Contract between the Company, on the one hand, and one or more wholly owned Company Subsidiaries, on the other hand, or between one or more wholly owned Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii3) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than between the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to on the saleone hand, transfer and Parent or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
Affiliates, on the other hand (x) each any such Contract with a term exceeding one in clauses (1), (2) year after the date of or (3), an “Excluded Contract”). Each Contract described in this Agreement which is a financial derivative interest rate hedge with a value Section 3.15(a) and each Filed Company Contract, in excess of Ten Million Dollars ($10,000,000) (each case, other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Excluded Contract, is referred to herein as a “Material Contract.”
(b) Except as would not have or would not reasonably be expected to havefor matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, each Material Contract is (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company’s Knowledge, of the other parties thereto, subject except, in all respects to the Bankruptcy each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and Equity Exceptionsby general principles of equity, and (ii) each such Company Contract is in full force and effect effect, except, in the case of clauses (i) or (ii), with respect to the Company and the Company Subsidiaries, any Material Contract which expires by its terms (as the case may be, and to the Knowledge in effect as of the CompanyAgreement Date) or which is terminated in accordance with the terms thereof by any party thereto in the ordinary course of business. Except for matters which, individually or in the other parties thereto aggregate, have not had and (iii) would not reasonably be expected to have a Company Material Adverse Effect, none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach of or default under any such Material Contract and no event has occurred that gives any third party to a Material Contract the right to accelerate the maturity or performance of any Material Contract or the right to cancel, terminate or materially modify any Material Contract. Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Contract andMaterial Adverse Effect, to the Knowledge of the Company’s Knowledge, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach thereof or default thereunder. The thereunder (and neither the Company nor any Company Subsidiary has made available waived or failed to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all enforce any material amendments, modifications, extensions, rights or renewals with respect theretomaterial benefits under any Material Contract).
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits Schedule 4.17(a) lists all material Contracts, oral or written (collectively, “Material Contracts”) to which any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Target Companies is a party to, and none of their respective properties or assets is bound by any of which are currently in effect and constitute the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):following:
(i) any Contract required to be filed by all Contracts that require annual payments or expenses by, or annual payments or income to, the Company as a “material contract” pursuant to Item 601(b)(10) Target Companies of Regulation S-K under $25,000 or more (other than standard purchase and sale orders entered into in the Securities Act that has not been so filedordinary course of business consistent with past practice);
(ii) all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and agreements, in each Contract to which case requiring the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor payment of any third party that restricts commissions by the Target Companies in any material respect the business excess of the Company and the Company Subsidiaries, taken as a whole$25,000 annually;
(iii) each Contract to all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of any of the Target Companies or other Person, under which any of the Company or any Company Subsidiary is a party that provides Target Companies (A) has continuing obligations for payments to or from the Company or any its Subsidiaries in excess payment of Fifty Million Dollars (annual compensation of at least $50,000,000) in the aggregate after the date of this Agreement 60,000 (other than (A) Contracts oral arrangements for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services salesat-will employment), (B) Contracts for future purchaseshas severance or post termination obligations to such Person (other than COBRA obligations), exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of any of the Target Companies;
(iv) each principal Contract creatingall Contracts creating a joint venture, guaranteeing or securing Indebtedness for borrowed money of the Company or strategic alliance, limited liability company and partnership agreements to which any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)Target Companies is a party;
(v) each material Contract with respect all Contracts relating to any acquisitions or dispositions of assets by any of the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesTarget Companies;
(vi) each Contract that (A) relates to the acquisition of assets (all Contracts for material licensing agreements, including Contracts licensing Intellectual Property Rights, other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing“shrink wrap” licenses;
(vii) all Contracts relating to secrecy, confidentiality and nondisclosure agreements restricting the conduct of any Contract that requires of the Company Target Companies or substantially limiting the freedom of any Company Subsidiary of the Target Companies to make compete in any advance, loan line of business or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, with any Person (other than the Company or in any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)geographic area;
(viii) all Contracts relating to patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property Rights of any Contract entered into since January 1, 2016 that relates to of the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)Target Companies;
(ix) each Contract Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Target Companies, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations;
(x) all Contracts with or pertaining to any of the Target Companies to which the Company, the Manager or any of their Affiliates is a term exceeding one party;
(1xi) year after all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which any of the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy Target Companies hold a leasehold interest (including the Leases) and which involve payments to the lessor thereunder in excess of Fifty Million Dollars $5,000 per month;
($50,000,000xii) in all Contracts relating to outstanding Indebtedness, including financial instruments of indenture or security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of credit;
(xiii) any Contract relating to the aggregate after voting or control of the date equity interests of this Agreement any of the Target Companies or the election of directors of any of the Target Companies (other than Contracts solely between the Company and Organizational Documents of the Target Companies);
(xiv) any settlement agreement with payments in excess of $30,000 per the terms of such agreement;
(xv) any Contract not cancellable by any of its wholly-owned Subsidiaries the Target Companies with no more than 60 days’ notice if the effect of such cancellation would result in monetary penalty to the Target Companies in excess of $50,000 per the terms of such contract;
(xvi) any Contract that can be terminated, or solely among its wholly owned Subsidiaries)the provisions of which are altered, as a result of the consummation of the transactions contemplated by this Agreement or any of the Additional Agreements to which the Company, any Subsidiary or any applicable Portfolio Company is a party; and
(xxvii) each any Contract with a term exceeding one (1) year after the date of this Agreement for which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries the benefits, compensation or solely among its wholly owned Subsidiaries)payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated hereby or the amount or value thereof will be calculated on the basis of any of the transactions contemplated by this Agreement.
(b) Except as would not have or would not reasonably be expected to haveset forth on Schedule 4.17(b), individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a validvalid and binding agreement, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect effect, and none of the Target Companies that is party thereto nor, to the best knowledge of the Representing Parties, any other party thereto, is in breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. Except as provided on Schedule 4.17(b), none of the Target Companies has assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contracts, or granted any power of attorney with respect thereto or to any of the Target Companies’ assets. Except as set forth on Schedule 4.17(b), no Contract (i) requires any of the Target Companies to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (ii) imposes any non-competition covenants that may be binding on, or restrict the Target Companies or the Business or require any payments by or with respect to Purchaser or any of its Affiliates. The Target, Company and Manager shall, within ten (10) days of the Signing Date, provide to Purchaser true and correct (A) fully executed copies of each written Material Contract and (B) written summaries of each oral Material Contract, provided, however, that each of the Target, the Company and the Manager represent and warrant that all agreements and arrangements necessary for disclosure in connection with the Tender Offer and the Registration Statement have been provided to Parent and Purchaser and that Target, Company Subsidiariesand Manager shall review and comment on the Tender Offer documents and Registration Statement for accuracy and completeness of any disclosures regarding the Target Companies.
(c) Except as set forth on Schedule 4.17(c), as the case may be, and to the Knowledge none of the Companyexecution, delivery or performance by the other parties thereto and (iii) none Company or the Target Companies of this Agreement or Additional Agreements to which the Company or any Target Company Subsidiary is (with a party or without notice the consummation by the Company or lapse the Target Companies of time, the transactions contemplated hereby or both) in breach or thereby constitutes a default under or gives rise to any such Company Contract andright of termination, to the Knowledge cancellation or acceleration of any obligation of any of the Company, no other party Target Companies or to a loss of any such Company Contract is material benefit to which any of the Target Companies are entitled under any provision of any Material Contract.
(with or without notice or lapse of time, or bothd) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, Except as set for the avoidance on Schedule 4.17(d), each of doubtthe Target Companies is in compliance with all covenants, including all material amendmentsfinancial covenants, modificationsin all notes, extensionsindentures, bonds and other instruments or renewals with respect thereto)agreements evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger and Share Exchange Agreement (BGS Acquisition Corp.)
Contracts. (a) Except for the Contracts filed as exhibits to any the Filed Company ReportSEC Documents and purchase or task orders entered into in the ordinary course of business consistent with past practice (other than purchase or task orders entered into pursuant to Company Government Contracts or Company Government Subcontracts), or Section 3.15(a) of the Company Disclosure Letter sets forth a true and complete list as of the date of this Agreement, and the Company has made available to Parent true and complete copies, of each of the following Contracts (collectively, with the Contracts set forth in on Section 3.15 3.16(b) of the Company Disclosure Letter, as of the date hereof, neither the “Material Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company ContractContracts”):
(i) any Contract required to be filed by all Contracts of the Company as a “material contract” pursuant or any Company Subsidiary made in the ordinary course of business consistent with past practice having an aggregate value, or involving payments by or to Item 601(b)(10) the Company or any Company Subsidiary, of Regulation Smore than $1,000,000 in any twelve-K under the Securities Act that has not been so filedmonth period beginning on or after January 1, 2004;
(ii) each Contract all Contracts of the Company or any Company Subsidiary that, subject to all reasonable assumptions upon which they are based and accounting for all anticipated related indirect cost allocations, are not reasonably likely to be capable of performance in accordance with their terms without a material financial loss over the life of such Contacts;
(iii) all Contracts to which the Company or any Company Subsidiary is a party that made outside the ordinary course of business;
(aiv) restricts the ability of all Contracts to which the Company or any Company Subsidiary is a party, or that purports to engage in or compete in any business in any manner that is material to be binding upon the Company and the Company SubsidiariesCompany, taken as a whole, (b) requires the Company or any Company Subsidiary or any of its current or future affiliates, that contain a covenant restricting the ability of any such person to conduct any business on a “most favored nations” basis with any third party that restricts compete or engage in any material respect the business line of business, or to develop, market or distribute any products or services, in each case, in any geographic territory, other than a covenant that so restricts non-controlled affiliates of the Company and before the Company Subsidiaries, taken as a whole, Closing Date but will not restrict Parent or its affiliates after the Closing Date;
(cv) provides for “exclusivity,” rights all Contracts (other than leases of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business real property set forth on Section 3.16(b) of the Company and the Company Subsidiaries, taken as a whole;
(iiiDisclosure Letter) each Contract to which the Company or any Company Subsidiary is a party that provides for payments granting to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement Company Subsidiary any license or other right to use any material Intellectual Property Rights (other than (Aa license to use off-the-shelf software) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness material asset or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third partiesright;
(vi) each Contract that (A) relates all confidentiality, standstill or similar agreements to which the acquisition of assets (other than in Company or any Company Subsidiaries is a party made outside the ordinary course of business;
(vii) or capital stock all joint venture, partnership, teaming or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant agreements to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
is a party (vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000including all amendments thereto);; and
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant all Contracts to which the Company or any Company Subsidiary has is a party providing for indemnity (including any continuing indemnification, guarantee, “earnout” obligations to advance funds for expenses) to the current or other contingent, deferred former directors or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess officers of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and or any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Subsidiary.
(b) Except as Neither the Company nor any Company Subsidiary is in default or violation of (and no event has occurred which with notice or the lapse of time or both would not have constitute a default or would not violation by the Company or any Company Subsidiary of) any term, condition or provision of any indebtedness, guarantee or Material Company Contract, which default or violation is reasonably be expected to havelikely, individually or in the aggregate, to have a Company Material Adverse Effect, .
(c) With respect to each Contract between the Company or any Company Subsidiary and any Governmental Entity for which (i) performance has not been or was not completed or (ii) final payment has not been or was not received, in either case, prior to the date that is three years prior to the date of this Agreement, and each Company Contract is a validoutstanding bid, binding and legally enforceable obligation of quotation or proposal by the Company or one of any Company Subsidiary (each, a “Bid”) that if accepted or awarded could lead to a Contract between the Company Subsidiariesor any Company Subsidiary and any Governmental Entity, as including any facilities Contract for the case may beuse of government-owned facilities (each such Contract or Bid, anda “Company Government Contract”) and each Contract between the Company or any Company Subsidiary and any prime contractor or upper-tier subcontractor relating to a Contract between such person and any Governmental Entity for which (i) performance has not been or was not completed or (ii) final payment has not been or was not received, in either case, prior to the date that is three years prior to the date of this Agreement, and each outstanding Bid that if accepted or awarded could lead to a Contract between the Company or a Company Subsidiary and a prime contractor or upper-tier subcontractor relating to a Contract between such person and any Governmental Entity (each such Contract or Bid, a “Company Government Subcontract”):
(i) (A) each such Company Government Contract or Company Government Subcontract was, to the Knowledge knowledge of the Company, of the other parties theretolegally awarded, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to binding on the Company and the Company SubsidiariesSubsidiaries that are parties thereto and, as the case may be, and to the Knowledge knowledge of the Company, the other parties thereto thereto, and is in full force and effect and (B) each such Company Government Contract (or, if applicable, each prime Contract under which such Company Government Subcontract was awarded) is not currently the subject of bid or award protest proceedings and is not, to the knowledge of the Company, reasonably likely to become the subject of bid or award protest proceedings; provided that for purposes of this clause (i), the terms Company Government Contract and Company Government Subcontract shall not include any Bids,
(ii) the Company and each Company Subsidiary have complied in all material respects with all terms and conditions of such Company Government Contract or Company Government Subcontract, including all clauses, provisions and requirements incorporated expressly by reference therein and all requirements thereunder relating to the safeguarding of, and access to, classified information,
(iii) the Company and each Company Subsidiary have complied in all material respects with all requirements of all Laws or Contracts pertaining to such Company Government Contract or Company Government Subcontract,
(iv) to the knowledge of the Company, no facts exist that are reasonably likely to give rise to a claim (including a claim for price adjustment) for fraud or under the United States False Claims Act or the United States Truth in Negotiations Act, or to any other request for a reduction in price arising from any alleged violation of Law, in connection with any such Company Government Contract or Company Government Subcontract,
(v) neither the United States government nor any prime contractor, subcontractor or other person or entity has notified the Company or any Company Subsidiary, in writing or orally, that the Company or any Company Subsidiary has, or may have, materially breached or violated any Law, certification, representation, clause, provision or requirement pertaining to such Company Government Contract or Company Government Subcontract, and, to the knowledge of the Company, all facts set forth or acknowledged by any representations, claims or certifications submitted by the Company or any Company Subsidiary in connection with such Company Government Contract or Company Government Subcontract were current, accurate and complete in all material respects on the date of submission,
(vi) as of the date of this Agreement, neither the Company nor any Company Subsidiary has received any notice of termination for convenience, notice of termination for default, cure notice or show cause notice pertaining to such Company Government Contract or Company Government Subcontract,
(vii) other than in the ordinary course of business consistent with past practice, no material cost incurred by the Company or any Company Subsidiary pertaining to such Company Government Contract or Company Government Subcontract has been questioned or challenged, is the subject of any audit or, to the knowledge of the Company, investigation or has been disallowed by any government or governmental agency, and
(viii) no material payment due to the Company or any Company Subsidiary pertaining to such Company Government Contract or Company Government Subcontract has been withheld or set off, nor has any claim been made to withhold or set off money, and no progress or other payments received to date with respect thereto have been unlawfully received.
(d) neither the Company nor any Company Subsidiary, nor any of the respective directors, officers, employees, consultants or agents, of the Company or any Company Subsidiary, is, or within the past three years has been, (i) to the knowledge of the Company, under administrative, civil or criminal investigation, indictment or information by any Governmental Entity or (ii) the subject of any audit or investigation by the Company or any Company Subsidiary, in each case, with respect to any alleged violation of Law arising under or relating to any Company Government Contract or Company Government Subcontract.
(e) The Company has received no notice of (i) any outstanding material claims against the Company or any Company Subsidiary, either by any Governmental Entity or by any prime contractor, subcontractor, vendor or other person, arising under or relating to any Company Government Contract or Company Government Subcontract, or (ii) any outstanding material claims or requests for equitable adjustment or disputes between the Company or any Company Subsidiary and the United States government under the United States Contract Disputes Act, as amended, or any other Law or between the Company or any Company Subsidiary and any prime contractor, subcontractor, vendor or other person arising under or relating to any Company Government Contract or Company Government Subcontract. Except as referenced or contained in Quality Initiative Program reports previously made available to Parent’s Representatives, neither the Company nor any Company Subsidiary has received any written material adverse or negative past performance evaluations or ratings in connection with any Company Government Contract, Company Government Subcontract or other Contract with a Governmental Entity within the past three years. Neither the Company nor any Company Subsidiary has (i) any material interest in any pending or potential claim against any Governmental Entity or (ii) any material interest in any pending claim against any prime contractor, subcontractor, vendor or other person arising under or relating to any Company Government Contract or Company Government Subcontract.
(f) Within the past three years, none of the Company or any Company Subsidiary is (with or without notice or lapse of timeSubsidiary, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, any officer, director or manager of the Company or any Company Subsidiary (as a result of conduct associated with the Company or any Company Subsidiary), has been debarred or suspended, or proposed for debarment or suspension, or received notice of actual or proposed debarment or suspension, from participation in the award of Contracts with the United States government or any other Governmental Entity (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements). There exist no facts or circumstances that, to the knowledge of the Company, would warrant the institution of suspension or debarment proceedings or the finding of nonresponsibility or ineligibility, in either case, for purposes of doing business with any United States Governmental Entity in general, on the part of the Company, any Company Subsidiary or any of their respective directors, officers or managers.
(g) The Company has previously provided to Parent’s Representatives a true and complete list as of the date of this Agreement of any security audits or inspections of the Company or any Company Subsidiary by the United States government during the past three years and the results thereof. As of the date of this Agreement, to the knowledge of the Company, no other party facts currently exist that are reasonably likely to give rise to the revocation of any such security clearance of the Company, any Company Contract is (with Subsidiary or without notice any employee of the Company or lapse of time, or both) in breach or default thereunder. The any Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Subsidiary.
Appears in 1 contract
Contracts. (a) Except for Section 5.10(a) of the Contracts filed as exhibits Disclosure Schedule lists the following contracts, agreements, leases, licenses or arrangements to which any Company Report, or set forth in Section 3.15 member of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Group is a party toor by which its assets, and none of their respective properties or assets is Business are bound by any of (collectively, the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company ContractMaterial Contracts”):
(i) agreements not to compete with any Contract required Person in any business or geographic territory, or restricting a Person’s ability to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedsolicit any other Person’s customers, employees or business relationships;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material agreements relating to the Company and the Company SubsidiariesGroup’s use, taken as a wholeprotection, (b) requires the Company disclosure or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business nondisclosure of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor confidential information of any third party that restricts in and agreements between any material respect the business member of the Company Group and its employees regarding its employees’ use, protection, disclosure or nondisclosure of confidential information of any member of the Company Subsidiaries, taken as a wholeGroup;
(iii) each Contract to which the Company leases of real or any Company Subsidiary is a party that provides for payments to personal property involving consideration or from the Company or any its Subsidiaries other expenditure in excess of Fifty Million Dollars ($50,000,000) 10,000 per year or $100,000 in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)aggregate;
(iv) each principal Contract creatingexcept for purchase or sale orders for the purchase of materials or supplies or for the sale of products entered into in the Ordinary Course of Business, guaranteeing agreements involving payment or securing Indebtedness for borrowed money other expenditure of more than $50,000 per year or $250,000 in the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)aggregate;
(v) each material Contract with respect to agreements providing for the creation, formation, governance or control disposition of any material partnershipsasset, joint ventures or joint ownership arrangements with third partiesother than in the Ordinary Course of Business;
(vi) each Contract that consulting agreements not cancelable on less than six (A6) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoingmonths’ notice;
(vii) any Contract that requires the Company agreements with sales representatives, dealers or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000)distributors;
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer partnership or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000)joint venture agreements;
(ix) each Contract with a term exceeding one (1) year after agreements relating to the date license of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement intellectual property to and from third parties (other than Contracts solely between shrink-wrap, click-wrap, click through or other similar agreements with respect to off-the-shelf or personal computer software where the annual commitment of the Company after the Closing Date is less than $10,000 per year with respect to each such license);
(x) collective bargaining agreements;
(xi) any employment agreement or other agreement or arrangement between a member of the Company Group and its officers, managers or affiliates (including the Shareholders or any of its wholly-owned Subsidiaries their relatives or solely among its wholly owned Subsidiariesaffiliates);
(xii) any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the borrowing of money or evidencing an Encumbrance;
(xiii) any agreement with any customer, supplier, dealer, distributors or sales representatives described in Section 5.20 not entered into in the Ordinary Course of Business and in each case under which the Company is likely to be entitled to receive revenues or become subject to any obligation to pay a liability of more than $50,000 in any calendar year; and
(xxiv) each Contract with a term exceeding one (1) year after any other contract, agreement, lease, license or arrangement the date termination of this Agreement which is reasonably likely to result in a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Material Adverse Effect.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect effect, except as limited by bankruptcy, insolvency, reorganization, moratorium, marshaling or other similar Laws relating to the Company and the Company Subsidiaries, as the case may be, creditors’ rights generally or by general principles of equity (whether considered in an action at law or in equity) and to the Knowledge discretion of the Company, the other parties thereto and (iii) none court before which any proceedings therefor may be brought. No member of the Company or any Company Subsidiary Group is (with or without notice or lapse of time, or both) in breach or default under any such Company Material Contract andin any material respect, and to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all thereunder in any material amendments, modifications, extensions, or renewals with respect thereto)respect.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 3.10(a) of the Company Disclosure Letter, Schedule identifies each Company Contract that constitutes a Material Contract as of the date hereofof this Agreement. For purposes of this Agreement, neither the Company nor other than any Company Subsidiary Contract that is (1) a party tonon-disclosure agreement entered into in the ordinary course of business consistent with past practice or (2) an Employee Plan, and none which shall be governed under Section 3.17, for purposes of their respective properties or assets is bound by any this Agreement, each of the following categories of Company Contracts (each such Contract required shall be deemed to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, constitute a “Company Material Contract”)::
(i) any Company Contract required (A) limiting the freedom or right of the Company or any of its Affiliates, in any material respect, to be filed engage in any line of business or to compete with any other Person in any location or line of business or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company as a “material contract” pursuant or exclusivity obligations or restrictions or otherwise limiting the freedom or right of the Company or any of its Affiliates to Item 601(b)(10solicit or sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person, including, in each case of clauses (A) and (B), Company Contracts that, following the Closing, would reasonably be expected to so limit or impose obligations on Parent or any of Regulation S-K under the Securities Act that has not been so filedits Affiliates;
(ii) each any Company Contract that requires by its terms the payment or delivery of cash or other consideration by or to the Company in an amount having an expected value in excess of $2,000,000 in the fiscal year ending December 31, 2022 or in any single fiscal year thereafter;
(iii) any (A) Company Contract that would entitle any third party to receive a license or any other right, title or interest (including any option or other contingent right, or any covenant not to ▇▇▇) with respect to Intellectual Property Rights of Parent or any of its Affiliates following the Closing Date or subject Parent or any of its Affiliates to any non-compete or other restrictive covenants following the Closing Date, (B) In-bound License, (C) Out-bound License, (D) Company Contract pursuant to which the any research or development activities related to any Product(s) are conducted, or (E) settlement, co-existence or other similar Company Contract or any Company Subsidiary is Contract that grants a third party that a license or right to use or restricts any Person from filing, registering, enforcing, disposing of or otherwise exploiting any Intellectual Property Rights related to any Product(s), in each case, other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses, service or supply agreements containing either no license or non-exclusive outbound licenses for the purpose of providing such services or supply to the Company, or other Contracts containing non-exclusive licenses incidental to the purpose of such Contract;
(aiv) restricts the ability of the Company or [RESERVED];
(v) any Company Subsidiary Contract relating to engage the Company’s Indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) for a principal amount in excess of $2,000,000;
(vi) any Contract (other than a Contract described in clause (iii)) that provides for the creation of any Encumbrance, other than a Permitted Encumbrance, with respect to any asset (including Company IP or compete in any business in any manner that is other intangible assets) material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect of the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiariescurrently conducted, taken as a whole;
(iiivii) each any Company Contract constituting or relating to which the formation, creation, operation, management or control of a joint venture, partnership or limited liability company;
(viii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock or other equity interests of the Company or prohibits the issuance of any guaranty by the Company;
(ix) any Company Subsidiary Contract with any Affiliate, director, executive officer (as such term is a party defined in the Exchange Act), holder of 5% or more of Shares or, to the knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members (other than offer letters that provides can be terminated at will without severance obligations and Company Contracts pursuant to Company Stock Awards);
(x) any Company Contract for payments the lease, sublease or sub-sublease of any real property;
(xi) any Company Contract (A) relating to the disposition or from acquisition by the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries assets with a fair market value in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any 2,000,000 outside of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) , or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates pursuant to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of which the Company will acquire any ownership interest in any other Person or the Company Subsidiaries other business enterprise with a total consideration value of more greater than Twenty-Five Million Dollars $2,000,000;
($25,000,000xii) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, or offer for purchase or sale, as applicable, any (A) equity interests of any Person or (B) assets (excluding ordinary course commitments to purchase goods, products and off-the-shelf software) or businesses for an amount in excess, in the foregoingaggregate, of $2,000,000;
(viixiii) any Company Contract with (A) a sole-source supplier or (B) any supplier not covered by clause (A) that requires involved the payment of more than $1,000,000 in the Company’s last fiscal year;
(xiv) any Company Contract with any Governmental Body;
(xv) any Company Contract, (A) other than entered into in the ordinary course of business, the primary purpose of which is to provide for indemnification or guarantee of the obligations of any other Person that would be material to the Company and (B) that indemnifies any director or any executive officer of the Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than any indemnification provisions set forth in the Company certificate of incorporation or any Company Subsidiary) in excess bylaws or comparable governing documents of Twenty-Five Million Dollars ($25,000,000the Company);
(viiixvi) any Contract entered into since January 1hedging, 2016 that relates to swap, derivative or similar Company Contract;
(xvii) notwithstanding any exclusion set forth in the salesecond sentence of Section 3.10(a), transfer any collective bargaining agreement or other disposition of Contract with any labor union, labor organization, or works council (each a business or assets by the Company or “Labor Agreement”);
(xviii) any Company Subsidiary Contract that is a settlement, conciliation or similar agreement pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected is to result in aggregate payments in excess pay consideration of Twenty-Five Million Dollars (more than $25,000,000);
(ix) each Contract with a term exceeding one (1) year 200,000 after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in that imposes any other material obligation upon the aggregate Company after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Agreement; and
(xxix) each any other Company Contract with a term exceeding one that is currently in effect and has been filed (1or is required to be filed) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between by the Company and any as an exhibit pursuant to Item 601(b)(10) of its whollyRegulation S-owned Subsidiaries K under the Securities Act or solely among its wholly owned Subsidiaries)that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(b) Except as As of the date of this Agreement, the Company has either delivered or made available to Parent or Parent’s Representatives an accurate and complete copy of each Material Contract including all amendments, waivers and changes thereto. Neither the Company nor, to the knowledge of the Company, the other party is in material breach of or material default under any Material Contract and, neither the Company, nor, to the knowledge of the Company, the other party has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Company and, to the knowledge of the Company, the other party, a valid agreement, binding, and in full force and effect. To the knowledge of the Company, each Material Contract is enforceable by the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Since January 1, 2020, the Company has not have received any written notice (i) regarding any violation or would breach or default under any Material Contract that has not reasonably be expected since been cured or (ii) from any Person that such Person intends to haveterminate, or not renew, any Material Contract, in each case, except for violations, breaches, defaults, terminations or nonrenewal that are not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies not waived in writing any rights under any Material Contract, the waiver of each Company Contract (includingwhich would have, for either individually or in the avoidance of doubtaggregate, all material amendments, modifications, extensions, or renewals with respect thereto)a Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Turning Point Therapeutics, Inc.)
Contracts. (a) Except for this Agreement and for the Contracts filed as exhibits to any disclosed in the Filed Company ReportSEC Documents, or set forth in Section 3.15 2.13(a) of the Company Disclosure Letter, Letter sets forth a true and complete list as of the date hereofof this Agreement, neither and the Company nor any Company Subsidiary is a party tohas made available to Parent true and complete copies, and none of their respective properties or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filedAct;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (aA) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business or with any Person in any manner that is material to the Company and the Company Subsidiaries, taken as a wholegeographical area, (bB) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeparty, or (cC) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeparty;
(iii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses or otherwise grants or receives rights with respect to Intellectual Property from or to any third party (other than generally commercially available, off-the-shelf software programs), including license agreements, coexistence agreements, non-assertion agreements, option agreements and escrow agreements with respect to Intellectual Property, except for non-exclusive licenses from third parties or to customers in the ordinary course of business;
(iv) each Contract to which the Company or any Company Subsidiary is a party that provides for annual payments to or from the Company or any its Subsidiaries receipts in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries)5,000,000;
(v) each material Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money, pursuant to which a Lien (other than a Permitted Lien) is granted and outstanding or any financial guaranty, in each case with respect to the creation, formation, governance or control a principal amount in excess of any material partnerships, joint ventures or joint ownership arrangements with third parties$5,000,000;
(vi) each Contract that (A) relates to provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business), businesses (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other securities equity interests of a third party that (by merger, capital contribution A) has not yet been consummated or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreementhas outstanding any material purchase price adjustment, directly or indirectly“earn-out”, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by mergerindemnification, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal payment or similar right pursuant to which obligations on the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any part of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viiivii) any each Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnoutearn-out” or other contingent, deferred or fixed contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business consistent with past practice), in each case that would reasonably be expected to could result in aggregate payments in excess of Twenty-Five Million Dollars $1,000,000;
(viii) any Contract that obligates the Company or any Company Subsidiary to make any capital commitment, loan or expenditure in an amount in excess of $25,000,000)5,000,000;
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); andGovernment Contract;
(x) each Contract, other than with respect to any partnership that is wholly owned by the Company or any wholly owned Company Subsidiary, that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person; and
(xi) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between or binding upon the Company and or any of its wholly-owned the Company Subsidiaries or solely among its wholly owned Subsidiaries)any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in clauses (i) through (xii) above is referred to herein as a “Specified Contract”.
(b) Except as would not have or would not reasonably be expected to haveAs of the date of this Agreement, individually or in each of the aggregate, a Company Material Adverse Effect, (i) each Company Contract Specified Contracts is a valid, binding and legally enforceable obligation of (except as such enforceability may be limited by the Bankruptcy and Equity Exception) on the Company or one of the a Company SubsidiariesSubsidiary, as the case may be, and, to the Knowledge knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect, except for such failures to be valid, binding or enforceable or to be in full force and effect with respect to as would not reasonably be expected to, individually or in the aggregate, have a Company and the Company Subsidiaries, as the case may be, and to the Knowledge Material Adverse Effect. As of the Companydate of this Agreement, the other parties thereto and (iii) none of there is no default under any Specified Contract by the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract andor, to the Knowledge knowledge of the Company, no any other party to any such Company Contract is (thereto, and no event has occurred that with the lapse of time or without the giving of notice or lapse both would constitute a default thereunder by the Company or any Company Subsidiary or, to the knowledge of timethe Company, any other party thereto, in each case except as would not reasonably be expected to, individually or both) in breach the aggregate, have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received in the twelve months immediately preceding the date of this Agreement a notice from any other party under any Specified Contract of an intent to terminate, cancel or default thereunder. The fail to renew such Specified Contract, in each case except as would not reasonably be expected to, individually or in the aggregate, have a Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Igate Corp)
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 Part 2.10 of the Company Disclosure Letter, Schedule identifies each Company Contract that constitutes a Significant Contract (as defined below) as of the date hereofof this Agreement. For purposes of this Agreement, neither the Company nor any Company Subsidiary is a party to, and none of their respective properties or assets is bound by any each of the following categories of Contracts (each such Contract required shall be deemed to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, constitute a “Company Significant Contract”)::
(i) any Contract identified or required to be identified in Part 2.9 of the Company Disclosure Schedule, and any Contract (including outsourcing agreements) pursuant to which any Person has developed or created any Intellectual Property for or on behalf of any Acquired Corporation that is currently used in and is material to any Company Service Software or any Company Service (it being understood that proprietary information agreements and similar agreements with: (A) employees of the Acquired Corporations; or (B) consultants or independent contractors of the Acquired Corporations that are natural persons, need not be disclosed in the Company Disclosure Schedules but each such Contract is deemed a Significant Contract);
(ii) any Contract (other than Company Employee Agreements or Personnel Agreements) relating to the provision of services to any Acquired Corporation, which services are material to the operations of the Acquired Corporations, taken as a whole, other than non-exclusive Contracts for any third-party services that are generally available to the public on standard commercial terms at a cost of less than $100,000 in any calendar year;
(iii) any Contract creating or relating to any partnership or joint venture or requiring any Acquired Corporation to share any revenues or profits with any other Person;
(iv) any Contract that provides for: (A) reimbursement of any Company Associate for, or advancement to any Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate;
(v) any Contract imposing any material restriction on the right or ability of any Acquired Corporation (or, after the Closing, Parent or its Subsidiaries): (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person, other than personnel non-solicitation restrictions; (C) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person; (D) to perform services for any other Person; (E) to transact business with any other Person, other than personnel non-solicitation restrictions; (F) to develop or distribute any technology or other Intellectual Property; (G) to use any Intellectual Property, other than customary inbound license restrictions on the manner in which the applicable Intellectual Property licensed from another Person may be used; or (H) to manufacture any products;
(vi) any Contract: (A) involving the grant of “most favored nation” status to any Person or preferential rights to provide, sell or distribute any Company Service to any Person; or (B) granting an exclusive relationship between any Acquired Corporation and any other Person with respect to products or services;
(vii) any Contract that involves or relates to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset);
(viii) any Contract relating to the lease or sublease by any of the Acquired Corporations of any real property;
(ix) any Contract with: (A) a provider of transaction processing or settlement services for the funding of transfers initiated using Company Services; or (B) a top 20 Distribution Provider by transaction volume, for both the year ended December 31, 2014 and the three-month period ended March 31, 2015;
(x) any Contract (other than a Contract disclosed pursuant to clause “(ix)” above) that contemplates or involves the payment or delivery of cash or other consideration by any Acquired Corporation in an amount or having a value in excess of $1,000,000 individually, or $5,000,000 in the aggregate when taken together with all other Company Contracts involving such Person or such Person’s Affiliates;
(xi) any Contract: (A) relating to the lease, license, disposition or acquisition (directly or indirectly) by any Acquired Corporation of a substantial portion of the assets of, or a substantial equity interest or other interests in, any other Entity or any business conducted by any other Entity; (B) pursuant to which any Acquired Corporation will acquire any real property; (C) for the acquisition or disposition of any business containing any profit sharing arrangements or “earn-out” arrangements, indemnification obligations of any Acquired Corporation or other contingent payment obligations; or (D) for the sale of any of the assets of any Acquired Corporation, other than in the ordinary course of business, or for the grant to any Person of any preferential rights to purchase any of the assets of any Acquired Corporation;
(xii) any other Contract that has been or would otherwise be required to be filed by the Company as a “material contract,” or 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 that has not been so filed;Act; and
(iixiii) each any other Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, Acquired Corporations taken as a whole, (b) requires the . The Company or any has Made Available to Parent an accurate and complete copy of each Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for payments to or from the Company or any its Subsidiaries in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with constitutes a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Significant Contract.
(b) Except Significant Contracts that have expired or terminated by their terms (other than as would not have or would not reasonably be expected to havea result of a breach thereof by an Acquired Corporation), individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation all of the Company or one of Significant Contracts are valid and binding on the Company Subsidiaries, as the case may beapplicable Acquired Corporation, and, to the Knowledge of the Company, of the each other parties party thereto, subject in all respects to the Bankruptcy as applicable, and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to 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.
(c) Except as set forth in Part 2.10(c) of the Company and Disclosure Schedule: (i) none of the Acquired Corporations has violated or breached, or committed any default under, any Company Subsidiaries, as the case may be, and Contract; (ii) to the Knowledge of the Company, the no other parties thereto and Person has violated or breached, or committed any default under, any Company Contract; (iii) none to the Knowledge of the Company Company, no event has occurred, and no circumstance or any Company Subsidiary is condition exists, that (with or without notice or lapse of time, ) would reasonably be expected to: (A) result in a violation or bothbreach of any of the provisions of any Company Contract; (B) in breach or give any Person the right to declare a default under any such Company Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate the maturity or performance of any Company Contract andthat constitutes a Significant Contract; (E) result in the disclosure, release or delivery of any Company Source Code; or (F) give any Person the right to cancel, terminate or modify any Company Contract that constitutes a Significant Contract, and (iv) since January 1, 2011, none of the Acquired Corporations has received any written notice or, to the Knowledge of the Company, no other party to communication regarding any such violation or breach of, or default under, any Company Contract is (with that constitutes a Significant Contract except as would not have and would not reasonably be expected to have or without notice result, individually or lapse of timein the aggregate, or both) in breach or default thereunder. The a Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (XOOM Corp)
Contracts. (a) Except for Schedule 3.8(a) sets forth a true and complete list of each Contract (the Contracts filed as exhibits “Material Contracts”), including each Assigned Contract, that relates to any Company Report, or set forth in Section 3.15 of the Company Disclosure Letter, as of the date hereof, neither the Company nor any Company Subsidiary Business and is a party tonot an Excluded Contract, and none of their respective properties or assets is bound by any of Contract with respect to a period following the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
Closing Date (i) any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(ii) each Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which the Company or any Company Subsidiary is a party that provides for aggregate payments to or from the Acquired Company or any its Subsidiaries in excess of Fifty Million Dollars $100,000 per contract year; ($50,000,000ii) that is an employment or severance Contract; (iii) that contains restrictions with respect to payment of dividends or any other distributions in respect of the aggregate after capital stock or other equity interests of the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
Acquired Company; (iv) each principal Contract creating, guaranteeing that guarantees any indebtedness or securing Indebtedness for borrowed money obligation of the Company or any of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (other than Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
Person; (v) each material Contract that limits the ability of the Acquired Company to engage freely in any line of business in any geographic area or to compete with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
Person; (vi) each Contract under which the Acquired Company has borrowed or loaned money, or that is a mortgage, note, bond, indenture or other evidence of indebtedness (A) relates to the acquisition of assets (other than excluding advances, deposits, trade payable in the ordinary course of business, and leases for telephones, copy machines, facsimile machines and other office equipment); (vii) or capital stock that establishes any joint venture, partnership or other securities similar joint ownership entity or arrangement; (by merger, capital contribution or otherwiseviii) with respect to the management of the Acquired Company; (ix) that is a consent decree of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant Governmental Authority to which the Acquired Company is bound; (x) that (A) grants or acquires any Company Subsidiary could be required right to purchase or sell, as applicable, use any of the foregoing;
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement Intellectual Property (other than Contracts solely granting rights to use readily available commercial software available to consumers for a combined license and maintenance fee or subject to “shrink wrap” or “click through” license agreements) or (B) restricts the right of the Acquired Company or permits any third Person to use any Intellectual Property; or (xi) that is an agreement between Seller and the Company and any Acquired Company, or their respective officers or directors. Copies of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than all Material Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)have been made available to Purchaser.
(b) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of against the Acquired Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the CompanySeller’s Knowledge, of against the other parties theretoparty to such Material Contract, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general application relating to or affecting creditors’ rights and to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing, and Seller or the Acquired Company has duly performed in all respects its obligations under each Material Contract to which it is a party (to the Bankruptcy and Equity Exceptions, extent that such obligations to perform have arisen).
(iic) each such Neither Seller nor the Acquired Company Contract is in full force and effect breach or default (nor would there be a breach or default with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, time or bothboth as a result of events that have occurred) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto)Material Contract.
Appears in 1 contract
Contracts. (ai) Except for Contracts that are entered into by a third-party manager on behalf of the Contracts filed as exhibits Company pursuant to any Company ReportManagement Agreement Document or Contracts that the Company was required to enter into pursuant to the terms of a Company Management Agreement Document, or set forth in Section 3.15 none of which are material to the Company, Schedule 3.1(l)(i) of the Company Disclosure Letter, Letter contains a list of the following Contracts to which the Company or any Subsidiary of the Company is a party as of the date hereof, neither :
(A) any lease of personal property with third parties other than the Company nor or any Subsidiary of the Company, providing for annual rentals of $500,000 or more;
(B) any lease, sublease, license or occupancy agreement of real property with third parties other than the Company or any Subsidiary of the Company, providing for annual rentals of $500,000 or more;
(C) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, which is not a wholly-owned Subsidiary of the Company;
(D) any Contract under which indebtedness for borrowed money is outstanding in an amount in excess of $500,000 (including guarantees) or may be incurred or pursuant to which any property or asset of the Company or any Subsidiary of the Company is mortgaged, pledged or otherwise subject to a Lien, or any Contract restricting the incurrence of indebtedness or the incurrence of Liens or restricting the payment of dividends or the transfer of any Company Property or a Subsidiary is a party to, and none of their respective properties or assets is bound by any of the following categories of Contracts Company;
(each such E) any Contract with current or ongoing obligations (as to the Company) currently required to be filed as an exhibit to any Company the Annual Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as a “material contract” on Form 10−K pursuant to Item 601(b)(10) of Regulation S-K S−K under the Securities Act Act;
(F) any Contract that purports to limit in any respect the right of the Company or its Subsidiaries or any Affiliate of the Company (1) to engage in any line of business, or (2) to compete with any Person or operate in any location;
(G) any Contract providing for the sale or exchange of, or option, right of first refusal or offer, or similar right, to sell or exchange, any of the Company Properties, or for the purchase or exchange of, or option, right of first refusal or offer, or similar right to purchase or exchange, any real estate entered into in the past two (2) years or in respect of which the applicable transaction had not been consummated;
(H) any Contract entered into in the past two (2) years or in respect of which the applicable transaction had not been consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (other than Contracts referenced in clause (G) of this Section 3.1(l)(i)) or capital stock or other equity interests of another Person for aggregate consideration in excess of $500,000, in each case other than in the ordinary course of business and in a manner consistent with past practice;
(I) any Contract pursuant to which the Company, any Subsidiary of the Company or any other Person manages any real property;
(J) other than Contracts for ordinary repair and maintenance, any Contract relating to the development or construction of, or additions or expansions to, the Company Properties, under which the Company or any Subsidiary of the Company has, or expects to incur, an obligation in excess of $1,000,000 in the aggregate that has not been so filedsatisfied as of the date hereof;
(iiK) each any Contract to which the Company or any Company Subsidiary is a party that (a) restricts the ability of the Company has continuing indemnification obligations relating to the settlement or proposed settlement of any Company Subsidiary to engage in Legal Action, which involves the issuance of equity securities or compete the payment of an amount, in any business such case, having a value of more than $1,000,000;
(L) any Contract that provides for any unpaid settlement or proposed settlement of any Legal Action in which the amount to be paid in settlement is in excess of $500,000;
(M) any manner license, royalty or other Contract concerning Intellectual Property the absence of which would, individually or in the aggregate, have a Company Material Adverse Effect;
(N) any Contract that is material to the Company and any Subsidiary of the Company SubsidiariesCompany, taken as a whole, (b) requires the Company or and contains any Company Subsidiary to conduct any business on a so-called “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract to which provisions requiring the Company or any Subsidiary of the Company Subsidiary is to offer a party Person any terms or conditions that are at least as favorable as those offered to any other Person;
(O) any Contract that provides for payments to or from a guarantee in an amount in excess of $500,000 of the obligations of any Person that is not the Company or any its Subsidiaries in excess Subsidiary of Fifty Million Dollars the Company; and
($50,000,000P) in the aggregate after the date of this Agreement any Contract (other than Contracts referenced in clauses (A) Contracts through (O) of this Section 3.1(l)(i)) that, by its terms, calls for transportation payments by or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇);
(iv) each principal Contract creating, guaranteeing or securing Indebtedness for borrowed money liability of the Company or any Subsidiary of the Company Subsidiaries in excess of Twenty-Five Million Dollars ($25,000,000) (500,000 other than any Contract under this clause (P) that, by its terms, is terminable within six (6) months of this Agreement (without termination fee or penalty). The Contracts for Indebtedness or Indebtedness solely between the Company and any of its wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries);
(v) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that described in clauses (A) relates through (P), including those required to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwisebe identified on Schedule 3.1(l)(i) of the Company or Disclosure Letter, the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which Franchise Agreements and the Company or any Management Agreement Documents, in each case together with all exhibits and schedules thereto, are referred to as the “Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;Material Contracts.”
(vii) any Contract that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000);
(viii) any Contract entered into since January 1, 2016 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries); and
(x) each Contract with a term exceeding one (1) year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries).
(bii) Except for such breaches and defaults as would not have or would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect, (iA) each neither the Company Contract is a valid, binding and legally enforceable obligation nor any Subsidiary of the Company or one of the Company Subsidiaries, as the case may be, is and, to the Knowledge of the Company’s Knowledge, of the no other parties theretoparty is in breach or violation of, subject in all respects to the Bankruptcy and Equity Exceptionsor default under, any Company Material Contract, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iiiB) none of the Company or any of its Subsidiaries has received any claim of default under any such Company Subsidiary is Material Contract, and (C) no event has occurred that would result in a breach or violation of, or a default under, any Company Material Contract (in each case, with or without notice or lapse of time, time or both) in breach or default under any such ). Each Company Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (valid, binding and enforceable in accordance with or without notice or lapse of time, or both) its terms and is in breach or default thereunderfull force and effect. The Company has made available to Parent true and complete copies of each all Company Contract Material Contracts, including any amendments or supplements thereto.
(includingiii) There are no Contracts or material transactions between the Company or any Subsidiary of the Company, for on the avoidance one hand, and any (A) officer or director of doubtthe Company or any Subsidiary of the Company, all material amendments, modifications, extensions(B) record or beneficial owner of 5% or more of the voting securities of the Company, or renewals with respect thereto)(C) associate (as defined in Rule 12b-2 under the Exchange Act) or affiliate of any such officer, director or record or beneficial owner of the Company, on the other hand.
Appears in 1 contract
Contracts. (a) Except for the Contracts filed as exhibits to any Company Report, or set forth in Section 3.15 3.16 of the Company Disclosure LetterStatement contains a true, as correct and complete list of the date hereof, neither the Company nor any Company Subsidiary is (or a party to, and none of their respective properties specific cross-reference to one or assets is bound by any of the following categories of Contracts (each such Contract required to be filed as an exhibit to any Company Report or listed in Section 3.15 more other sections of the Company Disclosure LetterStatement where there is described) the following contracts, agreements and commitments, whether written or oral, to which the Company or any its Subsidiaries is a “Company Contract”party ("Contracts"):
(i) each NRTC Distribution Agreement (together with the Service Area covered by each) and any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) other agreement with NRTC or DirecTV, Inc. or any of Regulation S-K under the Securities Act that has not been so filedtheir Affiliates;
(ii) each Contract agreement to which the Company or any Company Subsidiary of its Subsidiaries is a party that (a) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material relating to the Company and the Company Subsidiaries, taken as Acquisition of a whole, (b) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a wholeDIRECTV Distribution Business;
(iii) any agreement (or group of related agreements) relating to the financing, lease or rental of Personal Property to the Company or any of its Subsidiaries by any Person requiring payments in excess of $75,000 per year;
(iv) each Contract lease of real property to which the Company or any Company Subsidiary of its Subsidiaries is a party that provides for payments to or from party;
(v) each form of agreement used by the Company or any of its Subsidiaries to provide for the maintenance or installation of DSS Systems since the date of the Company's Acquisition of the DIRECTV Distribution Business in which such agreement or contract is used;
(vi) any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services (including any forms of agreement or purchase order relating to the sale of DSS Systems or the sale of DIRECTV services) requiring payments in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than (A) Contracts for transportation or storage of gas, transportation of coal, transmission of electric energy, capacity or ancillary services sales, (B) Contracts for future purchases, exchange or sales of gas, coal, oil or electric energy and (C) financial derivative interest rate ▇▇▇▇▇▇)75,000 per year;
(ivvii) each principal Contract creatingany agreement concerning a partnership or joint venture;
(viii) any agreement with the Shareholders (or any of them), guaranteeing including agreements related to registration rights;
(ix) any agreement (or securing Indebtedness group of related agreements) under which the Company or any of its Subsidiaries has created, incurred, assumed or guaranteed any indebtedness for borrowed money money, or any capitalized lease obligation, or under which the Company or any of its Subsidiaries has imposed an Encumbrance, the liability on which, determined in accordance with GAAP, exceeds $75,000;
(x) any agreement concerning confidentiality or noncompetition;
(xi) any agreement involving any officer, director, shareholder or member of the Company or any of its Affiliates;
(xii) any agreement for the Company Subsidiaries employment or hire of any individual on a full-time, part-time, consulting or other basis requiring payments in excess of Twenty-Five Million Dollars $50,000 per year;
($25,000,000xiii) (other than Contracts for Indebtedness or Indebtedness solely between each form of agreement used by the Company and or any of its wholly-owned Company Subsidiaries relating to the services of sales representatives, agents and other independent contractors (including agreements relating to the maintenance or between installation of DSS Systems) since the wholly-owned Company Subsidiaries)date of the Company's Acquisition of the DIRECTV Distribution Business with respect to which such agreement or contract is used;
(vxiv) each material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vi) each Contract that (A) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate, (B) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than Twenty-Five Million Dollars ($25,000,000) in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to agreement under which the Company or any Company Subsidiary could be required of its Subsidiaries has advanced or lent any amount to purchase any employee or sell, as applicable, any of the foregoing;
(vii) any Contract that requires current or former directors, officers or shareholders of the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person of its Affiliates (other than advances against properly documented and properly reimbursable business expenses in the Company or any Company Subsidiary) in excess of Twenty-Five Million Dollars ($25,000,000Ordinary Course);
(viiixv) any Contract entered into since January 1, 2016 that relates to agreement under which the sale, transfer or other disposition consequences of a business default or assets by termination could have a Material Adverse Effect on the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of Twenty-Five Million Dollars ($25,000,000);
(ix) each Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchange or sales of gas, oil or electric energy in excess of Fifty Million Dollars ($50,000,000) in the aggregate after the date of this Agreement (other than Contracts solely between the Company and any of its wholly-owned Subsidiaries or solely among its wholly owned Subsidiaries)Company; and
(xxvi) each Contract with a term exceeding one any other agreement (1or group of related agreements) year after entered into other than in the date Ordinary Course the performance of this Agreement which is a financial derivative interest rate hedge with a value involves consideration in excess of Ten Million Dollars ($10,000,000) (other than Contracts solely between 150,000. The Company has delivered to Pegasus a correct and complete copy of each written agreement listed in Section 3.16 of the Company Disclosure Statement and a written summary setting forth the terms and conditions of each oral agreement listed therein. With respect to each such agreement, except as described in Section 3.16 of the Company Disclosure Statement: (A) the agreement is legal, valid, binding, enforceable and in full force and effect; (B) subject to obtaining any consent referred to in Section 3.5 or disclosed in Section 3.5 of the Company Disclosure Statement, the agreement will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) neither the Company nor any of its wholly-owned Subsidiaries Subsidiaries, nor, to the best knowledge of the Company, any other party thereto, is in breach or solely among default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under the agreement; (D) neither the Company nor any of its wholly owned Subsidiaries), nor, to the best knowledge of the Company, any other party thereto, has repudiated any provision of the agreement; and (E) to the best knowledge of the Company, there is no Basis for any Person to claim that any of clauses (A) through (D) is untrue.
(b) Except as would not have or would not reasonably be expected to haveEach Consumer Contract conforms, individually or and the Company's and its Subsidiaries' conduct in the aggregateorigination, administration and enforcement of each Consumer Contract has conformed, to all applicable Legal Requirements, including those relating to usury, consumer credit, consumer credit disclosure and terms, consumer leasing and rental, debt collection and enforcement practices, equal credit opportunity and credit reporting practices, except where failures to so conform would not, in the aggregate have a Company Material Adverse Effect, (i) each Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of Effect on the Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect with respect to the Company and the Company Subsidiaries, as the case may be, and to the Knowledge of the Company, the other parties thereto and (iii) none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Company Contract and, to the Knowledge of the Company, no other party to any such Company Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. The Company has made available to Parent true and complete copies of each Company Contract (including, for the avoidance of doubt, all material amendments, modifications, extensions, or renewals with respect thereto).
Appears in 1 contract