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This excerpt taken from the MRVL 10-Q filed Sep 8, 2005. Seller Material Contract” shall
mean, other than purchase orders entered into in the ordinary course of
business:
(i) any contracts to which Seller is a party with respect to the Business that would be “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) of the Business if the Business were a separate SEC reporting company;
(ii) any contract containing any covenant expressly restricting the right of Seller to engage in any line of business or compete with any Person in any line of business which would be binding on Buyer as the successor in interest to Seller in the Business;
(iii) any contract, or group of contracts with a Person (or group of affiliated Persons), the termination or breach of which would have a Material Adverse Effect on the Business;
(iv) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and contracts relating to or evidencing indebtedness for borrowed money of Seller (excluding any leases involving aggregate annual payments of less than $100,000 per lease) which would be binding on Buyer as successor in interest to Seller in the Business or result in a Lien on any of the Assets;
(v) any legal entity in the nature of a partnership or joint venture, or a material strategic alliance, in each case relating to the Assets or the Business;
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(vi) any contract which would reasonably be expected to prohibit or materially delay the consummation of the transactions contemplated by this Agreement;
(vii) any contract that involves the purchase or lease of personal property with any supplier or for the furnishing of services to Seller in connection with the Business with payments greater than $100,000 per year, other than purchase orders in the ordinary course of business and other than contracts or agreements that are terminable by Seller within 90 days or less;
(viii) any employment agreement or employment contract with an employee of the Business that cannot be terminated upon reasonable notice, or pay in lieu of reasonable notice, as required by applicable Legal Requirements;
(ix) any collective bargaining agreement, letter of intent, letter of understanding or other contract with any labor organization, union or other employee association relating to the Business;
(x) (A) any continuing contract (including a purchase order of Seller) for the future purchase of materials, supplies or equipment or (B) any management, service, consulting or other similar contract, in any such case relating to the Business or the Assets and that has an aggregate future Liability to Seller or the Business in excess of $100,000;
(xi) any license, sublicense, option or other contract relating, in whole or in part, to any Transferred Intellectual Property or any Transferred Technology (including any license or other contract under which Seller granted the right to use any Transferred Intellectual Property or any Transferred Technology);
(xii) any contract (A) for the sale of any Asset (other than licenses and sales of Seller’s products in the ordinary course of business), (B) for the grant of any preferential rights to purchase any Asset, (C) for the grant of any exclusive right to use any Asset, or (D) requiring the consent of any party to the transfer of any Asset;
(xiii) any contract with any Governmental Entity relating to the Assets or the Business; and
(xiv) any contract (other than a purchase order or a sales order) relating to the Assets or the Business that has an aggregate future Liability to Seller in excess of $100,000 and extends for a term more than ninety (90) days from the date of this Agreement.
(b) Schedule. Section 3.10(b) of the Seller Disclosure Letter sets forth a list of all Seller Material Contracts to which Seller is a party or by which it is bound by as of the date hereof.
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(c) No Breach. All Seller Material Contracts that are Assigned Contracts are valid and in full force and effect and are enforceable in all material respects against Seller and, to Seller’s Knowledge, the other party thereto, in accordance with their terms, except to the extent such enforcement may be limited by bankruptcy, insolvency, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles. Except as set forth in Section 3.10(c) of the Seller Disclosure Letter, Seller has performed in all material respects all material obligations required to be performed by it to date under all Seller Material Contracts that are Assigned Contracts, there are no material Liabilities accrued under any Seller Material Contract that is an Assigned Contract with respect to any period prior to the Closing (other than those that will be discharged, paid or performed prior to the Closing), and Seller is not (with or without the lapse of time or the giving of notice, or both) in material breach or material default in any respect thereunder and, to Seller’s Knowledge, no other party to any Seller Material Contract that is an Assigned Contract is (with or without the lapse of time or the giving of notice, or both) in material breach or material default in any respect thereunder. Seller has not received any written notice of the intention of any party to terminate any Seller Material Contract that is an Assigned Contract. Except as set forth on Section 3.10(c) of the Seller Disclosure Letter, complete and correct copies of all Seller Material Contracts that are Assigned Contracts have been delivered to Buyer by Seller.
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