Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves: (A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date; (B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise; (C) Indebtedness involving liabilities in excess of $5 million; (D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise; (E) “most favored nations” provisions; (F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts; (G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or (H) any material amendment, modification or supplement in respect of any of the foregoing. (ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 5 contracts
Sources: Securities Purchase Agreement (Accelerant Holdings), Securities Purchase Agreement (Accelerant Holdings), Securities Purchase Agreement (Accelerant Holdings)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Neither the Company nor any of the Material its Subsidiaries is a party to or bound by any executory contract, leasearrangement, license commitment or other agreement understanding (whether written or oral) (i) that involves:
is a “material contract” (Aas such term is defined in Item 601(b)(10) payments of SEC Regulation S-K) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Reports filed prior to the date hereof, (ii) that materially restricts the conduct of any material line of business by the Company, or the ability of the Company and/or to operate in any Material Subsidiary geographic area or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation to engage in excess any line of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting business material to the Company or any Material Subsidiary from freely engaging to operate in any business geographical area, (iii) with or competing anywhere to a labor union or guild (including any collective bargaining agreement), (iv) relating to the borrowing of money or any guarantee in respect of any indebtedness of any person (other than the endorsement of negotiable instruments for collection in the world ordinary course of business), (v) that restricts competition or providing for exclusivity in any business line, geographic area or otherwise;
pricing (C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) including “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital provisions) or surplus to (vi) between the Company or and any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which of its Subsidiaries, on the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendmentone hand, modification or supplement in respect of and any of the foregoing.
Company’s stockholders (ii) All in their capacity as such), on the other hand. In addition, neither the Company nor any of its Subsidiaries is a party to or bound by any written employment contract. Each contract, arrangement, commitment or understanding of the contractstype described in the preceding two sentences of this Section 3.14(a), agreements, instruments and documents whether or not set forth on in the attached Schedule K (eachCompany Disclosure Letter, is referred to as a “Material Contract”,” and neither the Company nor any of its Subsidiaries knows of, or has received notice of, any violation of any Material Contract by any of the other parties thereto that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) are validWith such exceptions that have not had, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each Material Contract is valid and binding and enforceable against on the Company or the respective Material applicable Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto and is in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium full force and other Laws of general application affecting the enforcement of creditors’ rights generallyeffect, (Bii) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiarieseach of its Subsidiaries has performed all obligations required to be performed by it to date under each Material Contract, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract and (iii) no event or condition exists that will be fully performed or satisfied as of or prior to the Initial Closing, constitutes or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of after notice or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving of notice, or both, would result in will constitute, a material default, breach or event default on the part of noncompliance, in each such case, by the Company or any of the Material its Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 4 contracts
Sources: Merger Agreement (Us Unwired Inc), Agreement and Plan of Merger (Sprint Corp), Agreement and Plan of Merger (Sprint Corp)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Section 3.14(a) of the Company nor Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of the Material its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or bound Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any executory contractRelated Party (other than (A) offer letters for employment on an at-will basis, lease(B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement Contract pursuant to which the Company or any Material Subsidiary of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to contribute capital purchase or surplus otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any Person commodity, security, instrument, asset, rate or guarantee the obligations index of any Person kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any insurance contractAcquired Company has material outstanding obligations; or
(Hxiv) any material amendmentwill be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), modification (2), (4), (9) or supplement in respect (10) of any of Regulation S-K under the foregoingSecurities Act as if the Company was the registrant.
(iib) All of Except as has not had and would not be reasonably likely to have, individually or in the contracts, agreements, instruments and documents set forth on the attached Schedule K (eachaggregate, a “Material Contract”Adverse Effect: (i) are each Material Contract is in full force and effect and is a legal, valid, binding and enforceable against obligation of the Company or the respective Material Subsidiary, as applicable, its applicable Subsidiary and, to the Knowledge knowledge of the Company, each other party thereto (subject in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating each case to the availability Enforcement Exceptions); (ii) neither the Company, any of specific performanceits Subsidiaries nor, injunctive relief or other equitable remedies or (C) as would not be material to the Company and knowledge of the Company SubsidiariesCompany, taken as a whole); providedany other party to any Material Contract, thatis in material violation, for the avoidance of doubtmaterial breach or material default under, “any Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior Contract, and, to the Initial Closingknowledge of the Company, orthere exists no condition or event which, if this Agreement is being executed and delivered with respect to an Additional Closingafter notice, as lapse of time or prior to both, would constitute any such Additional Closing. Neither violation, breach or default; (iii) neither the Company nor any of the Material its Subsidiaries is in material default under or in material breach of, or in receipt has received written notice of any written claim of such material default or material breach, termination under any Material Contract. No event has occurred which; and (iv) as of the date hereof, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by neither the Company or nor its Subsidiaries have waived any of the Material Subsidiaries material rights under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD)
Contracts and Commitments. WP Disclosure Schedule Section 4.14 contains an accurate and complete list as of the Agreement Date of each contract, agreement or commitment of the WP Entities (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements to which any WP Entity or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries its assets or properties is a party bound and which requires total payments to or by a WP Entity of at least $2,000,000 annually; (b) to which any WP Entity or any of its assets or properties is bound by any executory contractor subject and which has a remaining term longer than one year, lease, license or other agreement (whether written or oral) that involves:
(A) which requires total payments by the Company and/or WP Entities, taken as a whole, of at least $2,000,000 during such term and which is not terminable on 30 or fewer days' notice without penalty; (c) containing covenants limiting the freedom of any Material Subsidiary WP Entity to compete in any line of business or with any Person in any geographical area; (d) calling for the proposed acquisition of any operating business or any assets outside the ordinary course of business and with a purchase price in excess of $3 million during the 12 month period ended on the Closing Date;
2,000,000; (Be) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
proposed purchase or sale of any material assets or properties of the WP Entities, taken as a whole; (Gf) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed WP Entity is a party or by which any of its assets or properties are bound relating to contribute indebtedness for borrowed money, including capital leases, security agreements relating thereto and any amendment or surplus to waiver thereof, and (g) with the Company WP Partners or any Material Subsidiary or Affiliate thereof (collectively, the "WP Commitments;" PROVIDED, that WP Commitments shall not include (i) contracts granting any capital maintenance contract or similar agreement pursuant WP Entity an option to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendmentpurchase land, modification or supplement in respect of any of the foregoing.
(ii) All conditions, covenants and restrictions for real property owned by any WP Entity, or (iii) agreements between any WP Entity and any contractor or developer made in the ordinary course of business). Each WP Commitment is a legal, valid and binding obligation of the contractsapplicable WP Entity, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto such WP Entity in accordance with their respective terms (its terms, except (A) as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and or other Laws of general application similar laws affecting the enforcement of creditors’ ' rights generallygenerally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Except as set forth in WP Disclosure Schedule Section 4.14, (B) as limited by Laws relating no WP Entity is, nor to the availability knowledge of specific performancethe WP Partners or the WP Entities is any other party thereto, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor in default under any of the Material Subsidiaries is WP Commitments where such default would result, in material default under the aggregate, in a Liability in excess of $2,000,000. Except as set forth in WP Disclosure Schedule Section 4.14, since December 31, 1998, no WP Partner or in material breach of, WP Entity has received written notice of cancellation or in receipt termination of any written claim of such material default or material breach, under WP Commitment from any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersother party thereto.
Appears in 4 contracts
Sources: Agreement and Plan of Reorganization (Schuler James K), Agreement and Plan of Reorganization (Schuler James K), Agreement and Plan of Reorganization (Apollo Real Estate Investment Fund L P/Ny)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth in the Company's Annual Report on Form 10-K for its fiscal year ended February 28, 2001, and for this Agreement and the attached Schedule Kagreements specifically referred to herein, neither the Company nor any of the Material Subsidiaries its subsidiaries is a party or subject to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.following agreements (each, a "Material Agreement"):
(i) any contract or agreement or amendment thereto that would be required to be filed as an exhibit to a registration statement on Form S-1 filed by Company as of the date hereof;
(ii) All any confidentiality agreement, non-competition agreement or other contract or agreement that contains covenants limiting Company's freedom to compete in any line of business or in any location or with any Person; and
(iii) any loan agreement, indenture, note, bond, debenture or any other document or agreement evidencing a capitalized lease obligation or other indebtedness to any Person, other than any indebtedness in a principal amount less than $100,000 individually or $250,000 in the contracts, agreements, instruments aggregate.
(b) The Company has delivered or made available to Parent a true and documents set forth correct copy of each Material Agreement. Each Material Agreement is valid and binding on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiaryits subsidiaries, as applicableapplicable and assuming due and valid authorization, andexecution and delivery by all other parties, to the Knowledge of the Companyand is in full force and effect, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither neither the Company nor any of its subsidiaries, nor to the Material Subsidiaries knowledge of the Company, any other party thereto, has breached any material provision of, or is in material default under or in material breach the terms of, any such Material Agreement.
(c) There is no agreement, judgment, injunction, order or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by decree binding upon the Company or any of its subsidiaries which has or could reasonably be expected to have the Material Subsidiaries under effect of prohibiting or materially impairing any such Material Contract. There are no outstanding, pending, or to the Knowledge material current business practice of the CompanyCompany or its subsidiaries, threatened any acquisition of material disputes with respect property by the Company or its subsidiaries or the conduct of business by the Company or its subsidiaries as currently conducted or as proposed to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to be conducted by the PurchasersCompany or its subsidiaries.
Appears in 3 contracts
Sources: Merger Agreement (Tender Loving Care Health Care Services Inc/ Ny), Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
Contracts and Commitments. 8.1 No Group Company is a party to:
(a) any agreement (whether by way of guarantee indemnity warranty representation or otherwise) under which the Group Company is under any actual or contingent liability in respect of (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound disposal by any executory contract, lease, license Group Company of its assets or business or any part thereof (except such as are usual in the ordinary and proper course of its normal day to day trading as carried on at the date hereof) or (ii) the obligations of any other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Dateperson other than another Group Company;
(Bb) prohibiting any contracts which were not entered into in the ordinary course of business and which are of material value to, or materially limiting or restricting impose material obligations on the relevant Group Company;
(c) any agreement entered into otherwise than by way of bargain at arm's length;
(d) any contract with any director of the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in shareholder of the world or providing for exclusivity in any business line, geographic area or otherwiseCompany;
(Ce) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Businessany management, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwiseagreements;
(Ef) “most favored nations” provisionsany contract or commitment involving, or likely to involve, obligations or expenditure of an unusual or exceptional nature or magnitude;
(Fg) other than arising in contractual arrangements which may be legally terminated as a result of the Ordinary Course execution or completion of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractthis Agreement; or
(Hh) powers of attorney or other authorities (express or implied) which are still outstanding or effective to or in favour of any person, other than an existing director or employee of a Group Company, to enter into any contract or commitment or to do anything on its behalf.
8.2 In relation to all material amendmentoutstanding agreements to which any Group Company is a party (the "Business Agreement"):
(a) each Business Agreement is valid, modification or supplement binding and legally enforeceable against the parties thereto in respect accordance with its terms;
(b) no party to any Business Agreement is in breach of any of the foregoing.terms thereof;
(iic) All all approvals, consents and/or confirmations from the appropriate national, provincial, municipal or local governmental or regulatory authorities, bodies or bureau and/or any third parties which are required for or in connection the Business Agreements have been properly, unconditionally and irrevocably obtained, and no further action on the part of either of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, parties to the Knowledge Business Agreements nor any further approval, authorization or consent from any governmental or regulatory authority or from any third party is required for the transaction contemplated under the Business Agreements to be properly and validly implemented; and
(d) the Warrantors are not aware of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach ofinvalidity, or in receipt of any written claim grounds for determination, recession, avoidance or repudiation, of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersBusiness Agreement.
Appears in 3 contracts
Sources: Subscription Agreement (Ninetowns Digital World Trade Holdings LTD), Subscription Agreement (Ninetowns Digital World Trade Holdings LTD), Subscription Agreement (Ninetowns Digital World Trade Holdings LTD)
Contracts and Commitments. (i) Except as expressly contemplated by this AgreementAs of the date hereof, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Section 4.18 of the Company nor any Disclosure Schedule contains a complete and accurate list of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement all contracts (whether written or oral), plans, undertakings, commitments or agreements (including, without limitation, intercompany contracts) that involves:
(A"Company Contracts") payments by of the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant following categories to which the Company or any Material Subsidiary has agreed to contribute capital of its Subsidiaries is a party or surplus to by which any Person or guarantee of them is bound as of the obligations date of any Person under any insurance contract; orthis Agreement:
(Ha) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the employment contracts, agreementsincluding, instruments without limitation, contracts to employ executive officers and documents set forth on the attached Schedule K (eachother contracts with officers, a “Material Contract”) are valid, binding and enforceable against the Company directors or the respective Material Subsidiary, as applicable, and, to the Knowledge stockholders of the Company, each other party thereto and all severance, change in accordance control or similar arrangements with their respective terms (except (A) as limited by applicable bankruptcyany officers, insolvency, reorganization, moratorium and other Laws employees or agents of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach any obligation (absolute or event contingent) of noncompliance, in each such case, by the Company or any of its Subsidiaries to make any payment to any officers, employees or agents of the Material Company following the consummation of the transactions contemplated hereby or termination or change of terms and conditions of employment;
(b) collective bargaining agreements;
(c) Company Contracts for the purchase of inventory which are not cancellable (without material penalty, cost or other liability) within one year and, other than Company Contracts described elsewhere in this Section 4.18, other Company Contracts made in the ordinary course of business involving annual expenditures or liabilities in excess of $5,000,000 which are not cancellable (without material penalty, cost or other liability) within 90 days;
(d) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor, in excess of $1,000,000;
(e) Company Contracts containing covenants limiting the freedom of the Company or any of its Subsidiaries under to engage in any such Material Contract. There are no outstandingline of business or compete with any Person or operate at any location, pendingincluding, without limitation, any preferential rights granted to third parties;
(f) any Company Contract pending for the acquisition or disposition, directly or indirectly (by merger or otherwise) of material Assets (other than inventory) or capital stock of any Person (including, without limitation, the Company or any of its Subsidiaries); and
(g) other than Company Contracts described elsewhere in this Section 4.18 or Company Contracts which may be omitted pursuant to the Knowledge specific size limitations set forth in other provisions of this Section 4.18, Company Contracts between the Company and any of its wholly-owned Subsidiaries, on one hand, and any Subsidiary of the Company which is not wholly-owned, directly or indirectly, by the Company, threatened material disputes with respect to any such Material Contracton the other hand. True, correct and complete True copies of each Material Contract the written Company Contracts identified in Section 4.18 of the Company Disclosure Schedule have been delivered or made available to the PurchasersParent.
Appears in 3 contracts
Sources: Merger Agreement (Morgan Associates Inc), Merger Agreement (Kinder Richard D), Merger Agreement (K N Energy Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements Agreement or as set forth on the Schedule 4.15 attached Schedule Khereto, neither the Company nor any of the Material Subsidiaries is not a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to its current or former directors, officers or employees or any other employee benefit plan, arrangement or practice, whether formal or informal;
(ii) collective bargaining agreement or any other contract with any labor union, or severance agreements with executives;
(iii) management agreement or contract for the employment of any executive officer, including regional dental directors and regional operations directors, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (C) otherwise restricting its ability to terminate the employment of any employee at anytime for any lawful reason or for no reason without penalty or liability;
(iv) contract or agreement involving any Governmental Agency involving more than $25,000 other than in the Ordinary Course of Business;
(v) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any letter of credit arrangements;
(vi) guarantee, other than endorsements made for collection in the Ordinary Course of Business consistent with past custom and practice;
(vii) lease or agreement under which the Company is (A) lessee of or holds or operates any personal property, owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $10,000 or (B) lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company and/or any Material Subsidiary Company;
(viii) contract or group of related contracts with the same party or group of Affiliated parties for the purchase or sale of raw materials, commodities, supplies, products, equipment or other personal property or services under which the undelivered balance since the Audit Date of such products and services has a selling price in excess of $3 million during the 12 month period ended on the Closing Date50,000;
(Bix) prohibiting contract relating to the marketing, advertising or materially limiting promotion of its products or restricting services involving more than $25,000;
(x) agreement under which it has granted any Person any registration rights (including demand and piggyback registration rights);
(xi) agreements relating to the ownership of, investments in or loans and advances to any Person, including investments in joint ventures and minority equity investments;
(xii) license, royalty, indemnification or other agreement with respect to any intangible property (including any Intellectual Property), including any agreements that prohibit or limit the ability of the Company to use or disclose any Intellectual Property or to engage in any line of business, or to compete with any Person or to carry on its business or any Material Subsidiary other business anywhere in the world other than in the Ordinary Course of Business;
(xiii) broker, agent, sales representative, sales or distribution agreement other than in the Ordinary Course of Business;
(xiv) power of attorney or other similar agreement or grant of agency;
(xv) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world world, including any nondisclosure or providing for exclusivity in any business line, geographic area or otherwise;confidentiality agreements; or
(Cxvi) Indebtedness involving liabilities other agreement which involves a consideration in excess of $5 million;
(D) 50,000 annually, other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(iib) All The Company has delivered or made available to Sentinel a correct and complete copy (as amended to date) of the contractseach contract, agreementsagreement, instruments and documents instrument set forth on Schedule 4.15 (collectively, the attached Schedule K (each, a “"Material Contracts"). With respect to each Material Contract”: (i) are validsuch Material Contract is legal, binding valid and binding, enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective its terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performanceextent required by Creditors Rights Laws), injunctive relief or other equitable remedies or and in full force and effect; (Cii) as would not such Material Contract will continue to be material legal, valid and binding, enforceable against the Company in accordance with the terms (except to the Company extent required by Creditors Rights Laws), and in full force and effect on identical terms following the Company Subsidiaries, taken as a whole)consummation of the transactions contemplated hereby; provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior (iii) to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior Company's knowledge no party to such Additional Closing. Neither the Company nor any Material Contract is in breach or default of the Material Subsidiaries is in material default under or in material breach ofterms thereof, or in receipt of any written claim of such material default or material breach, under any Material Contract. No and to the Company's knowledge no event has occurred which, which with the passage notice or lapse of time would constitute a breach or the giving of noticedefault, or bothpermit termination, would result modification, or acceleration, under such Material Contract; and (iv) no party to such Material Contract has repudiated any provision thereof.
(c) Except as specifically set forth on Schedule 4.15, the Company is not a party to any contract, agreement, instrument or understanding that contains a "change in a material default, breach control," "potential change in control," or event of noncompliancesimilar provision, in each such case, that would be triggered by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserstransactions contemplated hereunder.
Appears in 3 contracts
Sources: Preferred Stock and Subordinated Note Purchase Agreement (Castle Dental Centers Inc), Preferred Stock and Subordinated Note Purchase Agreement (Midwest Mezzanine Fund Ii Lp), Preferred Stock and Subordinated Note Purchase Agreement (Heller Financial Inc)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on in Section 3.18 of the attached Schedule KSeller Disclosure Letter, neither the Company nor any of the Material its Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesto:
(Aa) payments any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2006-2007 ski season and which are not terminable by the applicable Company and/or on 30 days or less notice without penalty to the applicable Company or any Material of its Subsidiaries, or which contain exclusivity arrangements which will be binding upon Affiliates of the applicable Company (other than a Subsidiary in excess of $3 million during thereof) following the 12 month period ended on the Closing DateClosing;
(Bb) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the applicable Company or its Subsidiaries would be required to pay severance to any director, officer, employee or consultant;
(c) any material agreement with another person or entity limiting or restricting the ability of the applicable Company or its Subsidiaries to enter into or engage in any market or line of business;
(d) any material brokerage agreements;
(e) any agreements for the sale of any of the assets of the applicable Company or its Subsidiaries other than in the ordinary course of business or for the grant to any person or entity of any preferential rights to purchase any of its assets;
(f) any agreement relating to the acquisition by the applicable Company or its Subsidiaries of any operating business or the assets or capital stock of any other corporation, entity or business entered into during the last twelve (12) months;
(g) any material agreements relating to the incurrence, assumption, surety or guarantee of any indebtedness other than ASC-Level Financings;
(h) any material agreements (other than agreements granting rights to use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of Company trademarks, tradenames and the like in connection with promotional activities) (i) granting or obtaining any right to use any Intellectual Property or (ii) restricting the rights of the applicable Company or any Material Subsidiary of its Subsidiaries, or permitting other Persons, to use or register any Intellectual Property of the applicable Company;
(i) any material agreements under which the applicable Company or its Subsidiaries has agreed to contribute capital made advances or surplus loans to any Person entity or guarantee individual (which shall not include advances made to an employee of the obligations applicable Company in the ordinary course of any Person under any insurance contractbusiness consistent with past practice); or
(Hj) except for agreements described in Section 3.18(a), any material amendment, modification other agreement (or supplement in respect group of related agreements) the performance of which presently requires aggregate payments be made to or from the Company or any of the foregoing.
(ii) All its Subsidiaries in excess of $100,000 per year. Each of the contracts, agreements, instruments contracts to which either Company or any of its Subsidiaries is a party and documents which is required to be set forth on Section 3.18 of the attached Schedule K Seller Disclosure Letter (eachthe “Material Contracts”), a “Material Contract”) are validtrue and complete copy of each of which has been delivered or made available to the Buyer prior to the date hereof is in full force and effect and is the legal, valid and binding and obligation of the applicable Company, enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto it in accordance with their respective terms (except (A) as limited by its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application similar laws affecting the enforcement of creditors’ rights generallyand remedies generally and subject, as to enforceability, to general principles of equity (B) as limited by Laws relating regardless of whether enforcement is sought in a proceeding at law or in equity). With respect to each Material Contract, neither the applicable Company nor its Subsidiaries nor, to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any Knowledge of the Material Subsidiaries Companies, any other party, is in material default under or in material breach of violation of, or in receipt of default under, any written claim of such material default or material breach, under any Material Contract. No , and no event has occurred occurred, is pending or, to the Knowledge of the Companies, is threatened, which, with the passage of time or after the giving of notice, with lapse of time, or bothotherwise, would result in constitute a material default, breach or event of noncompliance, in each such case, default by the applicable Company or any of the Material its Subsidiaries under any such Material Contract. There are no outstandingor, pending, or to the Knowledge of the CompanyCompanies, threatened material disputes with respect to any other party under such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 3 contracts
Sources: Purchase Agreement (Peak Resorts Inc), Purchase Agreement (Peak Resorts Inc), Purchase Agreement (American Skiing Co /Me)
Contracts and Commitments. (ia) Except as expressly specifically contemplated by this Agreement, the Prior Purchase Agreements or Agreement and except as set forth on Section 4.23(a) of the attached Schedule KCompany Disclosure Schedule, neither the Company nor any of the Material its Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesby:
(i) any agreement or indenture relating to the borrowing of money (other than intra-company borrowings), except for any such agreement or indenture (A) payments with an outstanding principal amount not exceeding $50,000 or (B) entered into subsequent to the date of this Agreement as permitted by Section 6.01;
(ii) any agreement for the purchase by the Company and/or or any Material Subsidiary of its Subsidiaries of materials, supplies, goods, services, equipment or other assets requiring annual payments of $100,000 or more that cannot be terminated on not more than 90 days' notice;
(iii) any sales, distribution or other similar agreement for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets requiring annual payments of $100,000 or more that cannot be terminated on not more than 90 days' notice;
(iv) any agreement relating to the licensing of material Intellectual Property by the Company or any of its Subsidiaries to a Third Party or by a Third Party to the Company or any of its Subsidiaries;
(v) any lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $3 million during the 12 month period ended on the Closing Date50,000 annually;
(Bvi) prohibiting any lease or materially limiting agreement under which it is lessor of or restricting the Company permits any Third Party to hold or operate any Material Subsidiary from freely engaging in any business material property, real or competing anywhere in the world Personal, owned or providing for exclusivity in any business line, geographic area or otherwisecontrolled by it;
(Cvii) Indebtedness involving liabilities in excess of $5 millionany collective bargaining, union or similar agreement;
(Dviii) other than arising in the Ordinary Course of Businessany settlement, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell conciliation or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to outstanding obligations of the Company and/or its Subsidiaries exist amounting to, or in excess of, $25,000;
(ix) any Material Subsidiary or any capital maintenance contract or similar agreement pursuant which prohibits it from freely engaging in its business as presently conducted and as presently proposed to which be conducted anywhere in the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractworld; or
(Hx) any other agreement material amendmentto the Company, modification its Subsidiaries or supplement their businesses, not entered into in respect the ordinary course of any of the foregoingbusiness consistent with past practices.
(iib) All Except as disclosed on Section 4.23(b) of the contractsCompany Disclosure Schedule, agreements, instruments and documents set forth (i) no contract or commitment required to be disclosed on the attached Schedule K (each, a “Material Contract”Section 4.23(a) are valid, binding and enforceable against of the Company or the respective Material Subsidiary, as applicable, andDisclosure Schedule has, to the Knowledge of the Company, each been breached or canceled by the other party thereto and (ii) the Company and each of its Subsidiaries have performed all material obligations required to be performed by them in accordance connection with their respective terms the contracts or commitments required to be disclosed on Section 4.23(a) of the Company Disclosure Schedule and are not in material default under or in material breach of any contract or commitment required to be disclosed on Section 4.23(a) of the Company Disclosure Schedule, and no event has occurred which with the passage of time or the giving of notice or both would result in a material default or material breach of a material term or condition thereunder. Each agreement required to be disclosed on Section 4.23(a) of the Company Disclosure Schedule is legal, valid, binding, enforceable and in full force and effect, except to the extent that such enforceability (except (Ai) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and or other Laws of general application similar laws affecting or relating to the enforcement of creditors’ ' rights generally, generally and (Bii) as limited by Laws relating is subject to the availability general principles of specific performance, injunctive relief or other equitable remedies or equity (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance regardless of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement whether such enforceability is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result considered in a material default, breach proceeding in equity or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersat law).
Appears in 3 contracts
Sources: Merger Agreement (Sylvan Inc), Merger Agreement (Sylvan Inc), Merger Agreement (Sylvan Inc)
Contracts and Commitments. (a) Section 3.12(a) of the Disclosure Schedule lists all of the following Contracts:
(i) Except collective bargaining agreements and any other Contracts with any labor unions or employee representative body;
(ii) Contracts for the employment or engagement of any officer, employee or other Person on a full-time, part-time, consulting or other basis that either: (A) provide severance obligations upon termination; (B) provide for the payment of any cash or other compensation or benefits as expressly contemplated by a result of the execution of this Agreement, Agreement or the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor consummation of any of the Material Subsidiaries is a party to Contemplated Transactions; or bound by (C) cannot be terminated without cause or reason upon 30 days’ or less notice and without any executory contract, lease, license or other agreement (whether written or oral) that involves:reasonable expectation of liability for UAV in connection therewith;
(Aiii) agreements, promissory notes, security agreements, pledge agreements or similar agreements for Indebtedness;
(iv) leases, subleases or licenses, either as lessee, sublessee or licensee or as lessor, sublessor or licensor, of any real property, personal property or intangibles, including capital leases;
(v) Contracts or series of related Contracts with customers, suppliers and vendors of UAV for the purchase or sale of goods or services involving annual payments by the Company and/or any Material Subsidiary in excess of $3 million during 100,000.00, which cannot be canceled by UAV without payment or penalty upon notice of 90 days or less, or whose unexpired term as of the 12 month period ended on the Closing Datedate of this Agreement exceeds one year;
(vi) Contracts that involve any (A) grant of, or obligation to grant, to UAV, any exclusive license or other exclusive rights or (B) prohibiting grant of, or materially limiting obligation to grant, to any Person by UAV, any exclusive license or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseother exclusive rights;
(Cvii) Indebtedness involving liabilities in excess Contracts of $5 millionagency, sales representation, distribution or franchise that cannot be canceled by UAV without payment or penalty upon notice of 30 days or less, and any powers of attorney or similar grants of agency;
(viii) Contracts restricting in any material respect UAV’s right or any right of any employee set forth on Schedule 3.11(b)(xi): (A) to compete with any Person; (B) to sell goods or services to any Person; (C) to purchase goods or services from any Person; or (D) other than arising in the Ordinary Course of Business, to solicit for employment or hire any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisePerson;
(Eix) “most favored nations” provisionsContracts to which UAV is a party and which restrict in any material respect any other Person’s right: (A) to compete with UAV; (B) to sell goods or services similar to those sold by UAV; (C) to purchase goods or services from UAV; or (D) to solicit for employment or hire any employee or consultant of UAV;
(Fx) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration Contracts relating to (A) the Insurance Contractsacquisition or disposition of any business, assets or securities outside the ordinary course of business, (B) any joint venture involving UAV or any of its Affiliates or (C) any equity or debt investment in or any loan to any other Person;
(Gxi) IP Licenses (other than any IP Licenses that is a capital maintenance contractshrink-wrap or click-through license or a license for “off the shelf” software that is generally available on standard, keepwell or similar agreement non-negotiated commercial terms for less than $10,000 annually);
(xii) Contracts pursuant to which any Person has agreed UAV receives services free of charge (or at a substantial discount) that would reasonably be expected to contribute capital be valued at $10,000 or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; orgreater;
(Hxiii) insurance policies disclosed on Section 3.19(a) of the Disclosure Schedule; and
(xiv) each with any material amendment, supplement and modification or supplement in respect of any of the foregoing.
(iib) All of UAV’s Contracts, agreements and instruments listed or required to be listed on Section 3.12(a) of the contractsDisclosure Schedule (collectively, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material ContractContracts”) are valid, valid and binding and enforceable against UAV and the Company or other parties thereto in accordance with their terms, subject only to the respective Material Subsidiary, as applicable, Enforceability Exception. UAV has performed in all material respects all obligations required to be performed by it and, to the Knowledge of the CompanyUAV, each other party thereto is not in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or nor in receipt of any written claim or, to the Knowledge of UAV, any other claim, of such material default under or material breachbreach of, under any Material Contract. No event has occurred which, which (with the passage of time or the giving of notice, notice or both, ) would result in a material defaultdefault under or breach of, or permit the termination, modification or acceleration of any obligation of UAV under, any Material Contract. To the Knowledge of UAV, there is no default under, or breach or event cancellation or anticipated cancellation of, any Material Contract by the other party or parties thereto. UAV has made available to Purchaser an accurate and complete copy of noncomplianceeach of the written Material Contracts, together with all amendments, extensions, guarantees and other binding supplements thereto, and an accurate description of each of the verbal Material Contracts, if any, together with all amendments, waivers or other changes thereto, in each such case, by in effect as of the Company date of this Agreement. Immediately following the consummation of the Contemplated Transactions, each of the Material Contracts will be in full force and effect and will be valid, binding and enforceable in accordance with their terms (subject only to the Enforceability Exception) and not be subject to any claims, charges, set-offs or defenses as a result of the consummation of any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersContemplated Transactions.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Genius Group LTD), Stock Purchase Agreement (Genius Group LTD)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, Agreement or the Prior Initial Closing Purchase Agreements Agreement or as set forth on the attached Schedule KL, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K L (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Accelerant Holdings), Securities Purchase Agreement (Accelerant Holdings)
Contracts and Commitments. (a) Except for the contracts listed on Schedule 5.7 (the “Specified Contracts”), the Division is not a party to, nor is the Division or any of its Acquired Assets bound by, any:
(i) Except as expressly contemplated by this Agreementcontract for the employment of any person on a full-time, the Prior Purchase Agreements or as set forth on the attached Schedule Kpart-time, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license consulting or other agreement (whether basis or contract relating to loans to officers, directors or affiliates, except oral or written contracts for employment at-will or oral) contracts that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Datewill be terminated at or prior to Closing;
(Bii) contract relating to any severance, golden parachute, stay bonus or similar contract with or for the benefit of any person engaged on a full-time, part-time, consulting or other basis requiring payments by PHMD upon the sale of the Division or otherwise;
(iii) contract relating to borrowed money or other indebtedness (including any capital lease agreements) or the mortgaging, pledging or otherwise placing an encumbrance on any Acquired Asset;
(iv) contract under which PHMD is lessor of, or permits any third person to hold or operate, any Acquired Asset;
(v) assignment, license, indemnification, joint development agreement or other contract with respect to any tradenames, trademarks, and service marks or designs used by the Division;
(vi) sales, distribution, dealer or manufacturer’s representative or franchise contract;
(vii) contract prohibiting or materially limiting or restricting the Company or any Material Subsidiary Division from freely engaging in any business or competing anywhere in the world world, or providing for exclusivity in any business line, geographic area or otherwisesubject to a change of control provision;
(Cviii) Indebtedness involving liabilities contract with any Division supplier containing any provision permitting any party other than PHMD to renegotiate the price or other terms, or containing any pay-back, retroactive adjustment or other similar provision, upon the occurrence of a failure by PHMD to meet its obligations under contract when due or the occurrence of any other event if such Division contract involves annual consideration in excess of $5 million5,000 or aggregate consideration in excess of $10,000, except where such failure gives the other party to the contract the right to terminate the contract and as a result of such right, the other party may seek to renegotiate any of such terms;
(Dix) other than arising contract for the Division’s committed future purchase of fixed assets or the maintenance of such fixed assets subject to future purchase or for the committed future purchase of materials, supplies or equipment involving annual consideration of $5,000 or aggregate consideration in the Ordinary Course excess of Business, any $10,000;
(x) Division contract relating to joint venture, partnership ventures or other cooperative arrangement or similar arrangement agreements involving a sharing of profits or otherwiseDivision profits;
(Exi) “most favored nations” provisionsDivision contract relating to cleanup, abatement or other actions in connection with environmental liabilities;
(Fxii) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration Division contract relating to the Insurance Contractsany “lock-box” with any financial institution;
(Gxiii) a capital maintenance contractDivision guaranty, keepwell bond or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to contract;
(xiv) Division contracts that require the Company or any Material Subsidiary or any capital maintenance contract payment of royalties, commissions, finder’s fees or similar agreement pursuant to payments which involves in the Company aggregate annual consideration in excess of $25,000;
(xv) contract limiting or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee restricting the obligations disclosure of any Person under any insurance contractconfidential information by PHMD; or
(Hxvi) material oral contracts not in the ordinary course of business that are binding on the Division.
(b) Materially complete and correct copies of each of the written Specified Contracts, including all amendments, waivers and modifications have been delivered, or will be delivered under Section 1(b), to PRI by PHMD. Except as set forth on Schedule 5.7, PHMD has not received notice of any material amendment, modification breach or supplement in respect of default under any of the foregoing.
(ii) All of contracts from any other party to the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge sent notice of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief any breach or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor default under any of the Material Subsidiaries is in material default under or in material breach ofcontracts to any other party to the contracts. To the knowledge of PHMD, or in receipt of any written claim of such material default or material breach, under any Material Contract. No no event has occurred whichthat, with the passage giving of time notice or the giving lapse of noticetime, or both, would result in constitute a material default, breach or event default on the part of noncompliance, in each such case, by the Company or PHMD under any of the Material Subsidiaries under contracts; nor to PHMD’s knowledge, has any such Material Contract. There are no outstanding, pendingevent occurred which with the giving of notice or the lapse of time, or both, would constitute a breach or default on the part of any other party to the Knowledge any of the Company, threatened material disputes contracts. Each contract that contains a change in control clause or otherwise requires the consent or approval of any person in connection with respect to any the transactions contemplated by this Agreement is appropriately identified as such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserson Schedule 5.7.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Photomedex Inc), Asset Purchase Agreement (Emergent Group Inc/Ny)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any Section 4.10(a) of the Material Subsidiaries Seller Disclosure Letter, no Company Entity is a party to any:
(i) CBA;
(ii) Contract, agreement or bound indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Company Entity has incurred or may incur Indebtedness exceeding the Threshold Amount for which any Company Entity will be liable following the Closing, or (B) relating to any Liens on assets of any Company Entity;
(iii) guaranty of any Indebtedness or other material guaranty;
(iv) Contract, lease or agreement under which it is lessee of, or holds, uses or operates any real or personal property or assets owned by any executory contractother party, leasefor which the annual rental or payment commitment exceeds the Threshold Amount;
(v) Contracts or group of related Contracts with any Top Customer or any Top Supplier;
(vi) Contracts or agreements relating to the acquisition or disposition (whether by merger, license sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Company Entity since January 1, 2022 or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Company Entity or, pursuant to which any Company Entity has any continuing “earn out” or other contingent payment obligations or any surviving material indemnification obligations;
(vii) joint venture, partnership, limited liability company or similar agreement with any third party (whether written including any agreement providing for joint development or oral) that involves:marketing);
(A) payments Contract pursuant to which any Company Entity licenses, or is otherwise permitted by a third party to practice, use or register, or receive any other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
Threshold Amount per year), (B) prohibiting Contract pursuant to which a third party licenses, or materially limiting is permitted to use or restricting the Company register, or granted any Material Subsidiary from freely engaging in other rights under, any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
Company-Owned IP Rights (C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising non-exclusive licenses granted by a Company Entity to customers in the Ordinary Course of Business), or (C) Contract affecting any joint ventureCompany Entity’s ability to use, partnership enforce, or other cooperative arrangement disclose any material Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or similar arrangement involving a sharing of profits or otherwisesettlement agreements;
(Eix) “most favored nations” provisionsdistribution, sales representative, marketing or similar Contract or agreement that required any Company Entity to make commission payments under such agreement in excess of the Threshold Amount during the twelve (12)-month period ended on the Balance Sheet Date;
(Fx) Contract or agreement pursuant to which any Company Entity would be required to make, in the aggregate, capital expenditures in excess of the Threshold Amount;
(xi) Contract or agreement that (a) materially limits the ability of any Company Entity to compete in any line of business or with any product or with any Person or in any geographic area or market or during any period of time or (b) contains covenants that restrict the business activity of any Company Entity in any material respect (other than arising non-disclosure agreements entered into in the Ordinary Course of Business);
(xii) Contract or agreement that contains “most-favored-nation” obligations or restrictions, material third-party administration or other insurance policy administration relating rights of first refusal or offer or any similar requirement or right, in each case binding any Company Entity in favor of any third party;
(xiii) Contract or agreement where any Company Entity is subject to the Insurance a requirement of exclusive dealing or any similar exclusivity obligation;
(xiv) any interest, currency or hedging derivatives or similar Contracts;
(Gxv) a capital maintenance contract, keepwell Contract or similar agreement pursuant to which any Person has agreed to contribute capital that limits the incurrence of Indebtedness or surplus to the Company declaration or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations payment of any Person under dividends or other distributions;
(xvi) Contract or agreement that involves payment to or by any insurance contractCompany Entity in excess of the Threshold Amount annually;
(xvii) Contract or agreement whose termination (other than those termination by passage of time) would have a Company Material Adverse Effect;
(xviii) management agreement or other Contract for the employment or engagement of any Service Provider on a full time, part time, consulting or other basis that: (A) provides for annual compensation (whether cash and/or otherwise) which may exceed $150,000, (B) provides for the payment of any cash or other compensation or benefits upon or in connection with the consummation of the transactions contemplated by this Agreement, (C) provides for the payment of any cash or other compensation or benefits related to a retention, severance, transaction-based or change in control bonus or other similar Contract with any Service Provider or (D) restricts any Company Entity’s ability to terminate the employment or engagement of any Service Provider at any time for any lawful reason or for no reason without penalty or Liability; or
(Hxix) any material amendment, modification Contract or supplement in respect agreement that relates to the settlement of any Action (A) with any Governmental Authority since the Look-back Date; (B) that materially restricts or imposes obligations upon any Company Entity; or (C) requires payment by a Company Entity of more than the foregoingThreshold Amount after the date hereof.
(iib) All Each Contract described in clauses (i) through (xix) of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, Section 3.11(a) is a “Material Contract”. The Company has provided to Purchaser true and correct copies of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto.
(c) are valid, binding and enforceable against the Neither any Company or the respective Material Subsidiary, as applicable, andEntity nor, to the Knowledge of the CompanySeller’s Knowledge, each any other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, violation of or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, that with the passage notice or lapse of time or the giving of notice, or both, both would result in constitute a material defaultbreach of, breach violation of or event of noncompliancedefault under, any Material Contract by any Company Entity, or, to the Seller’s Knowledge, any counterparty. All Material Contracts are valid and in each such casefull force and effect and constitute legal, by the Company or any valid and binding obligations of the Material Subsidiaries under any such Material Contract. There are no outstandingapplicable Company Entity and, pending, or to the Knowledge of Seller’s Knowledge, each counterparty, and are enforceable against the Companyapplicable Company Entity and, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersSeller’s Knowledge, the counterparty thereto in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
Appears in 2 contracts
Sources: Business Combination Agreement (Goal Acquisitions Corp.), Business Combination Agreement (Goal Acquisitions Corp.)
Contracts and Commitments. (a) As of the date hereof, ReShape is not a party to nor bound by any:
(i) Except “material contract” (as expressly contemplated such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to ReShape or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with ReShape’s Annual Report on Form 10-K for the year ended December 31, 2019, or any ReShape SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(ii) Contract (A) relating to the disposition or acquisition by ReShape or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement, other than in the Prior Purchase Agreements ordinary course of business consistent with past practice, or as set forth on (2) prior to the attached Schedule Kdate hereof, neither the Company nor which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of the Material Subsidiaries is a party them, to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary result in claims in excess of $3 million during the 12 month period ended on the Closing Date100,000 or (B) pursuant to which ReShape or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than ReShape’s Subsidiaries;
(Biii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body;
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging right of ReShape to compete in any line of business or competing anywhere in the world to conduct business with any Person or providing for exclusivity in any business linegeographical area, geographic (B) obligating ReShape 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 (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of ReShape on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or otherwisesimilar agreement under which ReShape has granted a Person an exclusive geographical area and under which ReShape paid commissions less than $100,000 to such Person in 2019 or from whom ReShape received less than $100,000 from the sale of product to said Person in 2019;
(Cvi) Indebtedness involving liabilities Contract pursuant to which ReShape or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by ReShape or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by ReShape or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period, or (ii) licenses ReShape Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $100,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any guaranty by ReShape or any of its Subsidiaries of third-party obligations (under which ReShape or any of its Subsidiaries has continuing obligations as of the date hereof) of $100,000 or more, other than any guaranty by ReShape or any of its Subsidiaries’ obligations;
(ix) Contract between ReShape, on the one hand, and any Affiliate of ReShape (other than a Subsidiary of ReShape), on the other hand (other than a ReShape Plan);
(x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than ReShape or its Subsidiaries;
(xi) Contract under which ReShape and ReShape’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $5 million;
(D) other than arising in 100,000 during the Ordinary Course of Business, any joint venture, partnership current or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractsubsequent fiscal year; or
(Hxii) any material amendment, modification or supplement in respect of Contract to enter into any of the foregoing.
(iib) All Obalon has been given access to a true and correct copy of all written ReShape Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral ReShape Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on ReShape, (i) ReShape is not in default under any Contract listed, or required to be listed, in Section 3.12(a) of the contracts, agreements, instruments and documents set forth on the attached ReShape Disclosure Schedule K (each, a “ReShape Material Contract” and, collectively, the “ReShape Material Contracts”) are and (ii) to ReShape’s knowledge, as of the date hereof, the other party to each of the ReShape Material Contracts is not in default thereunder. Each ReShape Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, ReShape and, to the Knowledge of the CompanyReShape knowledge, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingthereto. Neither the Company nor any As of the date hereof, no party to any ReShape Material Subsidiaries is in material default under or in material breach of, or in receipt of Contract has given any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge knowledge of ReShape, any notice (whether or not written) of termination or cancellation of any ReShape Material Contract or that it intends to seek to terminate or cancel any ReShape Material Contract (whether as a result of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserstransactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (ReShape Lifesciences Inc.), Merger Agreement (Obalon Therapeutics Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set Schedule 4.09 sets forth on the attached Schedule K, neither the Company nor any a correct and complete list of the Material Subsidiaries is a party following contracts to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting which the Company or any Material Subsidiary from freely engaging in any business of its Subsidiaries is a party, whether oral or competing anywhere in written, except for the world or providing for exclusivity in any business line, geographic area or otherwise;O&G Leases and the O&G Agreements (the “Company Contracts”):
(Ci) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Businesswritten bonus, any joint venturepension, partnership profit sharing, retirement or other cooperative arrangement or similar arrangement involving a sharing form of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course deferred compensation plan with respect to employees of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract of its Subsidiaries;
(ii) stock purchase, stock option or similar plan with respect to employees of the Company and any of its Subsidiaries;
(iii) any “standstill” or similar agreement, voting agreement or registration rights agreement;
(iv) any contract pursuant to which the Company or any Material Subsidiary has agreed of its Subsidiaries agrees to contribute capital indemnify or surplus to hold harmless any Person director or guarantee the obligations executive officer of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or any of its Subsidiaries (other than the respective Material Subsidiaryorganizational documents for the Company or any of its Subsidiaries);
(v) contract for the employment of any officer, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief individual employee or other equitable remedies person on a full time or consulting basis providing for fixed compensation in excess of $100,000 per annum;
(Cvi) as would not be material contract which creates a partnership or joint venture or similar arrangement with respect to any business of the Company and the Company Subsidiaries, its Subsidiaries taken as a whole); provided;
(vii) contract that would reasonably be expected to prevent, thatmaterially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement;
(viii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any portion of the assets of the Company or any of its Subsidiaries;
(ix) guaranty of any obligation for borrowed money or other guaranty;
(x) lease or agreement other than O&G Leases, under which it is lessee of, or holds or operates any personal property owned by any other party, for which the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed annual rental exceeds $150,000;
(xi) lease or satisfied as agreement under which it is lessor of or prior permits any third party to hold or operate any property, real or personal, for which the Initial Closing, or, if this Agreement is being executed and delivered annual rental exceeds $150,000;
(xii) all agreements with respect to an Additional Closingany hedging, as swap, forward, future or derivative transaction or option or similar agreements involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or prior pricing risk or value or any similar transaction or any combination of these transactions;
(xiii) contract or group of related contracts with the same party for the purchase of products or services which provide for annual payments in excess of $500,000 during the trailing twelve month period ending on the date of the First Fiscal Quarter 2007 Financial Statements;
(xiv) contract or group of related contracts with a supplier or purchaser that provides annual revenues (based on the trailing twelve month period ending on the date of the First Fiscal Quarter 2007 Financial Statements) to such Additional Closing. Neither the Company nor or one of its Subsidiaries in excess of $500,000;
(xv) material license or royalty agreement relating to the use by the Company or one of its Subsidiaries of any third party intellectual property (other than licenses for commercially available off the shelf software);
(xvi) any broker, distributor, dealer, representative or agency agreements;
(xvii) any take or pay or requirements contracts or agreements or any other contracts or agreements requiring the Company or any of its Subsidiaries to pay regardless of whether products or services are received or to deliver production following the Material Subsidiaries is in material default under Effective Time for which it has been previously paid;
(xviii) contracts or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time purchase orders for capital expenditures or the giving acquisition or construction of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, fixed assets requiring the payment by the Company or any of its Subsidiaries of an amount in excess of $500,000; and
(xix) contract (other than this Agreement) for the Material sale of any of the Company or its Subsidiaries’ assets after the date hereof in excess of $500,000.
(b) Buyer either has been supplied with, or has been given access to, a true and correct copy of all written contracts which are referred to on Schedule 4.09, together with all material amendments, waivers or other changes thereto.
(c) To the Sellers’ knowledge, none of the Sellers, the Company or any of its Subsidiaries is in default under any contract listed on the Schedule 4.09. No party has made any claim or demand under any such Material Contractcontract for performance by the Company or for compensation for any alleged failure to perform. There are no outstandingAll contracts set forth on Schedule 4.09 are, pending, or to the Knowledge Sellers’ knowledge, valid and in full force and effect and constitute legal, valid and binding obligations of the CompanyCompany or its Subsidiaries, threatened material disputes as applicable, and are enforceable against the Company or its Subsidiaries, as applicable in accordance with respect to any such Material Contract. Truetheir respective terms, correct except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and complete copies general principles of each Material Contract have been made available to equity affecting the Purchasersavailability of specific performance and other equitable remedies.
Appears in 2 contracts
Sources: Contribution and Sale Agreement (Eagle Rock Energy Partners L P), Contribution and Sale Agreement (Eagle Rock Energy Partners L P)
Contracts and Commitments. (a) Part 3.14(a) of the Sellers’ Disclosure Schedule sets forth a list of the following Contracts to which either of the ▇▇▇▇▇▇▇▇ Companies is a party (collectively, the “Material Contracts”): (i) Except as expressly contemplated a material agreement with any senior executive that is not cancelable by this AgreementEquipment Co. on notice of not longer than thirty (30) days and without liability, the Prior Purchase Agreements penalty or as set forth on the attached Schedule K, neither the Company nor any premium; (ii) a lease of the Material Subsidiaries is a party to or bound by any executory contract, lease, license personal property involving consideration or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary expenditure in excess of One Hundred Thousand Dollars ($3 million during 100,000) per annum; (iii) except for purchase or sale orders for the purchase of materials or supplies or customer contracts entered into in the ordinary course of business, an agreement involving payment or other expenditure of more than One Hundred Thousand Dollars ($100,000) in the aggregate that is not cancelable on less than 12 month period ended on months’ notice; (iv) an agreement providing for the Closing Date;disposition of a material asset, other than in the ordinary course of business; (v) an agreement which provides for severance benefits upon termination of employment; (vi) a material agreement with a sales representative, dealer or distributor; (vii) a material license agreement; (viii) a material agreement under which Equipment Co. is indebted for borrowed money; and (ix) an agreement with a customer of Equipment Co.
(Bb) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any Neither of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, ▇▇▇▇▇▇▇▇ Companies is and, to the Knowledge of Sellers, none of the Companyother parties to each Material Contract is, in breach, violation of or default under any provision of any Material Contract. Each Material Contract is in full force and effect and represents a valid and binding obligation of such ▇▇▇▇▇▇▇▇ Company party thereto and, to the Knowledge of Sellers, each other party thereto in accordance thereto. To the Knowledge of the Sellers, no event has occurred or circumstance exists that would give any Person the right (with their respective terms or without notice or lapse of time) to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify such Material Contract.
(except c) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any amounts paid or payable to either ▇▇▇▇▇▇▇▇ Company under current or completed Material Contracts with any Person, and no such Person has made demand (Awritten or otherwise) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, for such renegotiation.
(Bd) as limited by Laws The Material Contracts relating to the availability sale, design or provision of specific performanceproducts or services by the ▇▇▇▇▇▇▇▇ Companies have been entered into in the ordinary course of business consistent with past practice and have been entered into without the commission of any act alone or in concert with any other Person, injunctive relief or other equitable remedies any consideration having been paid or promised, that is or would be in violation of any Law.
(Ce) as would not be material None of the Sellers has or may acquire any rights under, and none of the Sellers has or may become subject to any obligation or liability under, any Material Contract that relates to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach business of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstandingassets owned or used by, pending, or either ▇▇▇▇▇▇▇▇ Company and (ii) to the Knowledge of the CompanySellers, threatened material disputes with respect no shareholder, officer, director, agent, employee, consultant or contractor of either ▇▇▇▇▇▇▇▇ Company is bound by any Material Contract (other than those certain Wabtec Corporation Employee Non-Competition and Confidentiality Agreements referred to in Section 5.1(m) hereof) that purports to limit the ability of such shareholder, officer, director, agent, employee, consultant or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of either ▇▇▇▇▇▇▇▇ Company or (B) assign to either ▇▇▇▇▇▇▇▇ Company or to any such Material Contract. Trueother Person any rights to any invention, correct and complete copies of each Material Contract have been made available to the Purchasersimprovement, or discovery.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Westinghouse Air Brake Technologies Corp)
Contracts and Commitments. (i) Except To the Seller’s Knowledge, Schedule 4(k)(i) contains a list as expressly of the date of this Agreement of each Business Contract (the “Business Contracts (Scheduled)”) to which any Subject Entity (other than Cameron Highway Oil Pipeline Company, Poseidon and Southeast ▇▇▇▇▇▇▇▇ Canyon Pipeline Company, L.L.C.) is a party (including currently effective amendments and modifications thereto and an asterisk next to each Business Contract that requires the consent of a counterparty thereto to consummate the transactions contemplated by this Agreement, ) in the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesfollowing categories:
(A) payments any contract (other than a customary buy/sell arrangement) that provides for the payment by any Subject Entity of more than $10,000,000 over the Company and/or any Material Subsidiary in excess remaining life of $3 million during the 12 month period ended on the Closing Datesuch contract;
(B) prohibiting any contract (other than a customary buy/sell arrangement) that has not been fully performed prior to the date of this Agreement that constitutes a purchase order or materially limiting other contract relating to the sale, purchase, lease or restricting the Company provision by any Subject Entity of goods or any Material Subsidiary from freely engaging services in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseexcess of $10,000,000;
(C) Indebtedness involving liabilities any contract, including a buy/sell arrangement, that generates net revenues for any Subject Entity in excess of $5 million10,000,000 annually;
(D) any contract that grants any Person the exclusive right to sell products or provide services within any geographical region;
(E) any contract that purports to limit the freedom of any Subject Entity to compete in any line of business, including any portion of the Business, or to conduct business in any geographic location;
(F) any contract that provides for the deferred payment of any purchase price (other than trade payables incurred in the Ordinary Course of Business), including any “earn out” or other contingent fee arrangement, except any such agreement with an aggregate outstanding principal amount not exceeding $10,000,000;
(G) any contract that creates an Encumbrance (other than a Permitted Encumbrance) on any of the Business Assets or the Acquired Equity Interests or any contract giving rise to a vendor’s lien in respect of trade payables arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(EH) “most favored nations” provisionsany contract that involves interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative or hedging contracts;
(FI) any contract (other than arising loans to employees up to an aggregate amount of $10,000,000) under which any Subject Entity has made advances or loans to any other Person other than trade receivables incurred in the Ordinary Course of Business and any intercompany agreements to be repaid and terminated at or prior to the Closing;
(J) any contract that involves any outstanding contracts of guaranty, surety or indemnification, direct or indirect, by any Subject Entity;
(K) any contract forming a partnership, joint venture or similar arrangement;
(L) any operating or similar agreement with a value in excess of $10,000,000;
(M) any construction, maintenance or similar agreement with a value in excess of $10,000,000;
(N) any contract for the lease of personal property to or from any Person providing for lease payments in excess of $10,000,000 in any 12-month period;
(O) any contract not made in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;; and
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(HP) any material amendment, modification or supplement in respect of any of the foregoingcontract with an Associate as a counterparty.
(ii) All of The Seller has delivered (and has caused the contractsapplicable Company, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Subsidiary and, to the Knowledge extent it has the Legal Right, the applicable Company Joint Venture Entity) to the Buyer a correct and complete copy of each Business Contract (Scheduled) (as amended) set forth on Schedule 4(k)(i).
(iii) To the CompanySeller’s Knowledge, except as set forth in Schedule 4(k)(iii), with respect to each other party thereto in accordance with their respective terms (except Business Contract to which any Subject Entity is a party:
(A) as limited by applicable such contract is enforceable in all material respects, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other or similar Laws of general application affecting the enforcement of creditors’ rights generally, right generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(B) as limited by Laws relating subject to the availability receipt of specific performancethe consents indicated on Schedule 4(k)(i), injunctive relief or other equitable remedies or such contract will continue to be so enforceable on terms identical to those contemplated in (A) above following the consummation of the Transaction Agreements (except for those that expire at the end of their term, without regard to the Transaction Agreements); and
(C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior no party to such Additional Closing. Neither contract has repudiated any provision of such contract.
(iv) To the Company Seller’s Knowledge, the Subject Entity that is a party thereto is not (and neither the Seller nor any of its Affiliates that are a party thereto, and to the Material Subsidiaries is in material default under or Seller’s Knowledge, no other applicable counter-party thereto is) in material breach of, or in receipt default of any written claim Business Contract to which any Subject Entity is a party or to which the Seller, any of such material default its Affiliates or material breachany other Subject Entity is a counter-party, under any Material Contract. No and no event has occurred whichthat, with the passage notice or lapse of time or the giving of notice, or bothtime, would result in constitute a material default, breach or event of noncompliance, in each default under such case, by the Company or any of the Material Subsidiaries under any such Material Business Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Genesis Energy Lp), Purchase and Sale Agreement
Contracts and Commitments. (a) Schedule 3.16(a) sets forth each written contract or agreement outstanding as of the date hereof to which Seller or the Acquired Subsidiary is a party relating to the Acquired Business (other than any contract or agreement required to be disclosed on any other schedule to the Seller Disclosure Letter) and which:
(i) Except as expressly contemplated by this Agreementinvolves future payment or receipt of in excess of Cdn$250,000 or future performance or receipt of services or delivery or receipt of goods and materials, the Prior Purchase Agreements in each case with an aggregate value in excess of Cdn$250,000, including but not limited to sale and purchase agreements, distributorship and sales representative agreements and loan agreements, notes and other financing documents or as set forth on the attached Schedule K, neither the Company nor commitments to enter into any of the Material Subsidiaries foregoing agreements;
(ii) is a party to guarantee or bound by indemnity in respect of indebtedness of any executory contract, lease, license Person (including Seller or other agreement (whether written any Affiliate of Seller or oralthe Acquired Subsidiary) that involves:
(A) payments by the Company and/or any Material Subsidiary which may involve future payment in excess of $3 million during Cdn$5,000 or is a mortgage, security agreement or other arrangement intended to secure indebtedness of any Person (including Seller or any Affiliate of Seller or the 12 month period ended Acquired Subsidiary) in excess of Cdn$5,000 and creating an Encumbrance on any asset relating to the Closing DateAcquired Business;
(Biii) prohibiting imposes a right of first refusal, option or materially limiting or restricting other restriction with respect to any assets relating to the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseAcquired Business;
(Civ) Indebtedness involving liabilities is a loan or advance to, or investment in, any Person or an agreement, contract or commitment relating to the making of any such loan, advance or investment in excess of $5 million;
(D) other than arising in Cdn$5,000 that will be outstanding after the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractClosing; or
(Hv) any material amendmentis an agreement, modification contract or supplement in respect of any commitment limiting the freedom of the foregoingAcquired Business to engage in any line of business or to compete with any Person (except for exclusive distributorship agreements of Seller entered into in the ordinary course of business).
(iib) All Except as disclosed on Schedule 3.16(b), Seller has heretofore delivered to Buyer and Buyer Parent complete and correct copies of each of the contracts, agreements, instruments and documents agreements set forth on in Schedule 3.16(a) and the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against written agreements or contracts of the Company or the respective Material Subsidiary, as applicable, and, Acquired Business disclosed in any other schedule to the Knowledge of Seller Disclosure Letter (the Company, each other party thereto in accordance with their respective terms (except "Contracts"). There is not under any material Contract: (A) as limited any existing material default by applicable bankruptcySeller or the Acquired Subsidiary or, insolvencyto Seller's best knowledge, reorganizationby any other party thereto, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, or (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, any event that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed after notice or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving of notice, or both, would constitute a material default by Seller or the Acquired Subsidiary or, to Seller's best knowledge, by any other party, or result in a material default, breach right to accelerate or event terminate or result in a loss of noncompliance, in each such case, by rights of Seller or the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersAcquired Subsidiary.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Hosposable Products Inc), Asset Purchase Agreement (Hosposable Products Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as Schedule 5.18 hereto (with paragraph references corresponding to those set forth on below) contains a true and complete list of each of the attached Schedule Kfollowing contracts (true and complete copies or, neither the Company nor if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto, have been delivered or made available to PMCT), to which STH or any of the Material STH Subsidiaries is a party to or bound by which any executory contract, lease, license or other agreement (whether written or oral) that involvesHotel is bound:
(Ai) all contracts providing for the management of the Hotels;
(ii) all franchise agreements (the "Franchise Agreements");
(iii) all material contracts providing for a commitment of employment or consultation services for a specified or unspecified term;
(iv) all contracts with any person containing any provision or covenant prohibiting or materially limiting the ability of STH or any of the STH Subsidiaries to engage in any business activity or to compete with any person;
(v) all partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) all notes, debentures, bonds and other evidence of indebtedness which are secured or collateralized by mortgages, deeds of trust or other security interests in any Hotel or any personal property of STH or any of the STH Subsidiaries;
(vii) all contracts relating to any business combination;
(viii) all contracts between or among STH or any of the STH Subsidiaries, on the one hand, and any of their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the terms of such contract, by or to STH or any of the STH Subsidiaries of more than $25,000 or aggregate payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except 300,000 that will not (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting be fully performed on or prior to the enforcement of creditors’ rights generallyEffective Time, (B) as limited expire by Laws relating to their terms within 90 days following the availability of specific performanceEffective Time, injunctive relief or other equitable remedies or (C) be cancelable by the Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of assets, advance booking contracts and banquet contracts.
(b) Each contract required to be disclosed on Schedule 5.18 is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and, except as would not be material to the Company and the Company Subsidiariesdisclosed on Schedule 5.18, taken as a whole); providedneither STH, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material STH Subsidiaries nor, to the knowledge of STH, any other party to such contract is in material violation, breach or default under any such contract (or in material breach of, with notice or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving of notice, or both, both would result be in a material defaultviolation, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries default under any such contract), the effect of which, individually or in the aggregate, could reasonably be expect to result in an STH Material Contract. There are no outstanding, pending, or to the Knowledge Adverse Effect.
(c) The Franchise Agreements disclosed on Schedule 5.18 constitute all of the Company, threatened material disputes with respect franchise or similar agreements necessary to operate and manage the Hotels and neither STH nor any STH Subsidiary has received any notice or has any knowledge of an event of default or termination or proposed termination under any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersFranchise Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Supertel Hospitality Inc), Merger Agreement (PMC Commercial Trust /Tx)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreementdisclosed in the Company Reports filed since December 31, 2004 and prior to the Prior Purchase Agreements or as set forth on the attached Schedule Kdate hereof, neither the Company nor any of the Material its Subsidiaries is a party to to, is bound or bound by affected by, or receives any executory contractbenefits under, leaseany agreement, license contract or other agreement legally binding understanding, whether oral or written: (whether written or orali) that involves:
providing for (A) aggregate noncontingent payments by or to the Company and/or or any Material Subsidiary of the Company in excess of $3 million during the 12 month period ended on the Closing Date;
250,000 or (B) prohibiting potential payments by or materially limiting or restricting to the Company or any Material Subsidiary from freely engaging of the Company reasonably expected to exceed $1,000,000; (ii) limiting the freedom of the Company to engage in any line of business or competing anywhere sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iii) any agreement that after the world Effective Time would have the effect of limiting in any respect the freedom of Parent or any of its Subsidiaries (other than the Company and its Subsidiaries) to engage in any line of business or sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iv) providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Businessresearch collaborations and license agreements); (v) involving any exchange-traded or over-the-counter swap, material thirdforward, future, option, cap, floor or collar financial contract, or any other interest-party administration rate or other insurance policy administration foreign currency protection contract; (vi) relating to the Insurance Contracts;
borrowing of money, the guarantee of any such obligation (Gother than trade payables and instruments relating to transactions entered into in the ordinary course of business), or the sale, securitization or servicing of loans or loan portfolios; (vii) a capital maintenance contractwith any directors, keepwell officers or similar agreement pursuant stockholders that cannot be cancelled by the Company (or the applicable Subsidiary of the Company) within 30 days' notice without liability, penalty or premium; (viii) containing severance or termination pay Liabilities related to termination of employment; (ix) related to product supply, manufacturing, distribution or development, or the license of Company Intellectual Property to or from the Company or its Subsidiaries (except for standard biological material transfer agreements and nonexclusive software licenses granted to end-user customers in the ordinary course of business, the form of which any Person has agreed been provided to contribute capital Parent, or surplus standard licenses purchased by the Company or its Subsidiaries for off-the-shelf software and except for licenses in which either the aggregate noncontingent payments to or by the Company are not in excess of $250,000 or the potential payment to or by the Company is not expected to exceed $1,000,000); (x) obligating the Company or any of its Subsidiaries to provide indemnification; (xi) providing for any standstill restriction on the Company; (xii) providing for the disposition of an asset through licensing or otherwise involving consideration in excess of $100,000 (other than in the ordinary course of business consistent with prior practice); or (xiii) otherwise required to be filed as an exhibit to an Annual Report on Form 10-K, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract of the type described in this Section 3.16, whether or not set forth in the Company Disclosure Letter, is referred to herein as a "Company Material Subsidiary Contract." The Company has heretofore made available to Parent a complete and correct copy of each Company Material Contract, including any amendments or any capital maintenance contract or similar agreement pursuant to which modifications thereto.
(b) Each Company Material Contract is valid and binding on the Company or any Material its Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, party thereto and, to the Knowledge of the Company, each other party thereto thereto, and is in accordance with their respective terms (except (A) as limited full force and effect, and the Company and each of the Subsidiaries of the Company have performed in all material respects all obligations required to be performed by applicable bankruptcythem under each Company Material Contract and, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability Knowledge of specific performancethe Company, injunctive relief or each other equitable remedies or (C) party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not reasonably be material expected to the have a Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional ClosingAdverse Effect. Neither the Company nor any Subsidiary of the Material Subsidiaries is in material default under or in material breach Company knows of, or in receipt of has received notice of, any written claim of such material violation or default under (or material breach, under any Material Contract. No event has occurred which, condition that with the passage of time or the giving of notice, notice would cause such a violation of or both, would result in default under) any Company Material Contract or any other agreement or contract to which it is a material default, breach party or event of noncompliance, in each such case, by the Company which it or any of the its properties or assets is bound, except for violations or defaults that would not reasonably be expected to have a Company Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersAdverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Smithkline Beecham Corp), Merger Agreement (Corixa Corp)
Contracts and Commitments. (i) Except as disclosed in the VitalStream Securities and Exchange Commission Reports, as expressly contemplated by this Agreement, the Prior Purchase Agreements Agreement or as set forth on the in Schedule 4(l) attached Schedule Khereto, neither the Company VitalStream nor any of the Material Subsidiaries VitalStream Subsidiary is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Dateother employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(B) prohibiting contract for the employment of any officer, individual employee or materially limiting other Person on a full-time, part-time, consulting or restricting other basis providing annual compensation in excess of $75,000 or contract relating to loans to officers, directors or Affiliates (unless terminable at will without severance obligations);
(C) contract or agreement with any Governmental Entity entered into outside the Company Ordinary Course of Business;
(D) contract under which VitalStream or any Material VitalStream Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(E) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any assets of VitalStream or any VitalStream Subsidiary;
(F) Guarantee of any Liability of any Person;
(G) settlement, conciliation or similar agreement under which such party has any future obligations or Liability;
(H) lease or agreement under which VitalStream or any VitalStream Subsidiary is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $25,000;
(I) lease or agreement under which VitalStream or any VitalStream Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by VitalStream or any VitalStream Subsidiary;
(J) contract or group of related contracts with the same party or group of Affiliated parties the performance of which involves the payment by VitalStream or any VitalStream Subsidiary of consideration in excess of $25,000; annually;
(K) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) entered into outside the Ordinary Course of Business;
(L) warranty agreement with respect to its services rendered or its products sold or leased;
(M) agreement under which it has granted any Person any registration rights (including demand and piggyback registration rights, any rights of first refusal or vetoes on the sale of the Acquired Assets);
(N) agreement relating to any Investment;
(O) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;world; or
(CP) Indebtedness involving liabilities any other agreement which is material to the operation of its Hosting Business or business prospects or involves a consideration in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract25,000; or
(H) any material amendment, modification or supplement in respect of any of the foregoingannually.
(ii) All of the contracts, agreements, agreements and instruments and documents set forth on in Schedule 4(l) attached hereto (the attached Schedule K (each, a “"VitalStream Material Contract”Contracts") are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (terms, except (A) as such enforceability may be limited by (i) applicable insolvency, bankruptcy, insolvency, reorganization, moratorium and or other similar Laws of general application affecting the enforcement of creditors’ ' rights generally, and (Bii) applicable equitable principles (whether considered in a proceeding at law or in equity). Except as limited set forth on Schedule 4(l)(ii) attached hereto, VitalStream and each VitalStream Subsidiary has performed all material obligations required to be performed by Laws relating to it under the availability of specific performance, injunctive relief or other equitable remedies or (C) as would VitalStream Material Contracts and is not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or of nor in receipt of any written claim of such material default or material breach, breach under any VitalStream Material Contract. No Contracts; no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material default, breach or event of noncompliance, in each such case, noncompliance by the Company VitalStream or any of the Material VitalStream Subsidiaries under any of the VitalStream Material Contracts; neither VitalStream nor any of the VitalStream Subsidiaries has any present expectation or intention of not fully performing all such obligations; VitalStream does not have any Knowledge of any breach or anticipated breach of any material obligation to be performed by the other parties to any of the VitalStream Material Contract. There are no outstanding, pending, or Contracts.
(iii) Other than VitalStream Material Contracts included as exhibits to the Knowledge VitalStream Securities and Exchange Commission Reports, Hosting has been supplied with a true and correct copy of each of the Companywritten VitalStream Material Contracts, threatened material disputes together with respect to any such Material Contract. Trueall amendments, correct waivers or other changes thereto, and complete copies an accurate description of each of the oral VitalStream Material Contract have been made available to the PurchasersContracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Vitalstream Holdings Inc), Asset Purchase Agreement (Brekka Richard)
Contracts and Commitments. (a) As of the date hereof, Visor is not party to nor bound by any:
(i) Except “material contract” (as expressly contemplated by this Agreement, such term is defined in Item 601(b)(10) of Regulation S-K of the Prior Purchase Agreements SEC) with respect to Visor or as set forth on the attached Schedule K, neither the Company nor any of its Subsidiaries that was required to be, but has not been, filed with the Material Subsidiaries is a party to SEC with Visor’s Annual Report on Form 10-K for the year ended March 31, 2014, or bound by any executory contract, lease, license or other agreement Visor SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(whether written or oralii) that involves:
Contract (A) payments relating to the disposition or acquisition by Visor or any of its Subsidiaries of a material amount of assets (1) after the Company and/or date of this Agreement other than in the ordinary course of business consistent with past practice or (2) prior to the date hereof, which contains any Material Subsidiary material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $3 million during the 12 month period ended on the Closing Date100,000 or (B) pursuant to which Visor or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Visor’s Subsidiaries;
(Biii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging right of Visor to compete in any line of business or competing anywhere to conduct business with any Person or in any geographical area, (B) obligating Visor 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 (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Visor on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement under which Visor has granted a Person an exclusive geographical area or under which Visor paid commissions less than $100,000 to such Person in the world fiscal year ended March 31, 2014, or providing for exclusivity from whom Visor received less than $100,000 from the sale of product to said Person in any business linethe fiscal year ended March 31, geographic area or otherwise2014;
(Cvi) Indebtedness involving liabilities Contract pursuant to which Visor or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by Visor or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Visor or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period or (ii) licenses Visor Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $100,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any guaranty by Visor or any of its Subsidiaries of third-party obligations (under which Visor or any of its Subsidiaries has continuing obligations as of the date hereof) of $100,000 or more, other than any guaranty by Visor or any of its Subsidiaries’ obligations;
(ix) Contract between Visor, on the one hand, and any Affiliate of Visor (other than a Subsidiary of Visor), on the other hand;
(x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Visor or its Subsidiaries;
(xi) Contract under which Visor and Visor’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $5 million;
(D) other than arising in 100,000 during the Ordinary Course of Business, any joint venture, partnership current or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractsubsequent fiscal year; or
(Hxii) any material amendment, modification or supplement in respect of Contract to enter into any of the foregoing.
(iib) All Union has been given access to a true and correct copy of all written Visor Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Visor Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Visor Material Adverse Effect, (i) Visor is not in default under any Contract listed, or required to be listed, in Section 4.12(a) of the contracts, agreements, instruments and documents set forth on the attached Schedule K Visor Disclosure Letter (each, a “Visor Material Contract” and, collectively, the “Visor Material Contracts”), and, (ii) are to Visor’s Knowledge, as of the date hereof, the other party to each of the Visor Material Contracts is not in default thereunder. Each Visor Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Visor and, to the Knowledge of the CompanyVisor’s Knowledge, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingthereto. Neither the Company nor any As of the date hereof, no party to any Visor Material Subsidiaries is in material default under or in material breach of, or in receipt of Contract has given any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or bothto Visor’s Knowledge, would any notice (whether or not written) of termination or cancellation of any Visor Material Contract or that it intends to seek to terminate or cancel any Visor Material Contract (whether as a result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, transactions contemplated hereby or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersotherwise).
Appears in 2 contracts
Sources: Merger Agreement (Vision Sciences Inc /De/), Merger Agreement (Uroplasty Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by As of the date of this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, leasearrangement, license commitment or other agreement understanding (whether written or oral) (i) that involves:
is a “material contract” (Aas such term is defined in Item 601(b)(10) payments of Regulation S-K promulgated under the Securities Act) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Reports filed prior to the date hereof, (ii) that materially restricts the conduct of any material line of business by the Company, or the ability of the Company and/or to operate in any Material Subsidiary geographic area or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation to engage in excess any line of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting business material to the Company or any Material Subsidiary from freely engaging to operate in any business geographical area, (iii) with or competing anywhere to a labor union or guild (including any collective bargaining agreement), (iv) relating to the borrowing of money or any guarantee in respect of any indebtedness of any person (other than the endorsement of negotiable instruments for collection in the world or providing for exclusivity in any business lineordinary course of business), geographic area or otherwise;
(Cv) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) that extends “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating similar pricing to the Insurance Contracts;
counterparty to such contract or (Gvi) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to between the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of and any of the foregoing.
(ii) All of the contractsSubsidiaries, agreements, instruments and documents set forth on the attached Schedule K (eachone hand, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge any of the Company’s stockholders (in their capacity as such), each on the other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcyhand. In addition, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither neither the Company nor any of the Material Subsidiaries is a party to or bound by any written employment contract (“Employment Agreements”). Each contract, arrangement, commitment or understanding of the type described in material default under the preceding two sentences of this Section 3.14(a), whether or not set forth in the Company Disclosure Letter, is referred to as a “Material Contract,” and neither the Company nor any of the Subsidiaries has Knowledge of any violation of any Material Contract by any of the other parties thereto that has had, or would reasonably be expected to have, individually or in material breach ofthe aggregate, a Material Adverse Effect.
(b) With such exceptions that have not had, or would not reasonably be expected to have, individually or in receipt of any written claim of such material default the aggregate, a Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or material breachthe applicable Subsidiary, as applicable, and is in full force and effect, (ii) the Company or the applicable Subsidiary has performed all obligations required to be performed by it to date under any each Material Contract. No , and (iii) no event has occurred whichor condition exists that constitutes or, with the passage after notice or lapse of time or the giving of notice, or both, would result in will constitute, a material default, breach or event default on the part of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 2 contracts
Sources: Merger Agreement (iPCS, INC), Merger Agreement (Sprint Nextel Corp)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Initial Closing Purchase Agreements Agreement, the Second Closing Purchase Agreement or the Third Closing Purchase Agreement or as set forth on the attached Schedule KL, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K L (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Accelerant Holdings), Securities Purchase Agreement (Accelerant Holdings)
Contracts and Commitments. (A) Each of the Material Contracts falling within limb (a) of the definition of such contracts as set out in SCHEDULE 1 (Interpretation) is either listed in the Data Room Index or a complete copy thereof is contained in the Disclosure Bundle.
(i) Except as expressly contemplated by this AgreementNo Company nor, in relation to the Prior Purchase Agreements US Business, any member of the Vendor's Group is in breach of a Material Contract where such breach is likely to give rise to a liability in excess of (pound)250,000 or as set forth would otherwise have a material adverse effect on the attached Schedule KTransferring Business;
(ii) the Vendor is not aware of any breach of a Material Contract by another party to such contract; and
(iii) other than in relation to breach (where SUB-PARAGRAPH (i) or (ii) applies) the Vendor is not aware of any invalidity or grounds for determination, neither rescission, avoidance or repudiation of any Material Contract except for any Contract relating to IT Systems.
(C) So far as it is material, no Company nor, in relation to the US Business, any member of the Vendor's Group has since 31st December, 2000 manufactured, developed, sold or provided any product (i) which does not comply with all applicable laws and regulations or (ii) which is defective or dangerous or not in accordance with any representations or warranties (express or implied) given in respect of it.
(D) No Company nor any member of the Material Subsidiaries Vendor's Group which is engaged in carrying on the Transferring Business is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended which materially restricts its freedom to carry on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging Transferring Business in any business or competing anywhere in part of the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;such manner as it thinks fit.
(E) “most favored nations” provisions;Save as set out in the Disclosure Letter and specifically referenced to this Warranty, no consent or agreement of any third party is required:
(i) to effect the transfer of any US Business Asset (other than the benefit of a US Contract), any Business IPR or any domain name listed in SCHEDULE 14 (Domain Names); or
(ii) to enable the relevant Designated Purchaser to perform any US Contract or IP Licence (excluding software licences) after Completion or to enable the Vendor or any member of the Vendor's Group to transfer, or to procure the transfer of, the benefit or burden of any US Contract or IP Licence (excluding software licences) to the relevant Designated Purchaser, in either case, in accordance with the terms of this Agreement.
(F) The execution and delivery of this Agreement and the other than arising in Specified Agreements and the Ordinary Course performance by each relevant member of Business, material third-the Vendor's Group of its obligations hereunder and thereunder will not relieve any other party administration to a Material Contract with a Company of its obligations or other insurance policy administration relating enable the party to the Insurance Contracts;vary or terminate its rights or obligations under that Material Contract.
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to No member of the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations Vendor's Group is in breach of any Person under US Contract (excluding any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws US Contract relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a wholeIT Systems); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 2 contracts
Sources: Sale Agreement (Inverness Medical Innovations Inc), Sale Agreement (Inverness Medical Innovations Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by for this Agreement, the Prior Purchase Agreements Agreement or as set forth on in Section 3.15 of the attached Schedule KCompany Disclosure Letter, neither the Company nor any of the Material its Subsidiaries is a party to to, or is bound by by, any executory contract, lease, license or other agreement (whether written or oral) that involvesContract:
(Ai) providing for aggregate noncontingent payments by or to the Company and/or or any Material Subsidiary of its Subsidiaries in excess of $3 million during 500,000 in any fiscal year, other than Contracts with an employee, consultant or independent contractor relating to employment or the 12 month period ended on the Closing Dateprovision of services;
(Bii) prohibiting limiting, in any material respect, the freedom of the Company to engage in any line of business or materially limiting sell, supply or restricting distribute any service or product (including with respect to the pricing thereof), or to compete with any entity or to conduct business in any geography, or that grants any exclusive rights to any party (other than any (x) non-exclusive licenses entered into in the ordinary course of business or (y) Contracts for which noncontingent payments by or to the Company or any Material Subsidiary from freely engaging of its Subsidiaries do not exceed $500,000 in any business fiscal year and that are terminable upon 90 days or competing anywhere in the world fewer notice), or providing for exclusivity in any business linesettlement, geographic area cross-license, concurrent use or otherwiseconsent-to-use agreements;
(Ciii) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving that is material to the Company and its Subsidiaries, taken as a sharing of profits or otherwisewhole;
(Eiv) “most favored nations” provisionsrelating to Indebtedness for borrowed money in excess of $500,000;
(Fv) other than arising containing severance or termination pay Liabilities related to termination of employment in the Ordinary Course excess of Business, material third-party administration or other insurance policy administration relating $200,000 (individually to the Insurance Contractsany employee);
(Gvi) a capital maintenance contractproviding for the supply, keepwell manufacturing, distribution or similar development of Company Products (except for any Contracts in which either the aggregate noncontingent payments to or by the Company are not in excess of $500,000 or the potential payments to or by the Company are not expected to exceed $500,000);
(vii) providing for the acquisition, transfer, in-bound licensing, out-bound licensing, development, co-development, or sharing of any Intellectual Property or Software or any other agreement pursuant to which any Person has agreed to contribute capital or surplus to materially affecting the ability of the Company or any Material Subsidiary of its Subsidiaries to use or disclose any capital Intellectual Property or Software (other than license agreements for commercially available software on standard terms with a replacement cost or annual license, maintenance contract and subscription fees of less than $100,000 in the aggregate and non-exclusive distribution, reseller and end-user customer and other non-exclusive agreements entered into in the ordinary course of business);
(viii) providing for indemnification by the Company of any officer or similar agreement director of the Company;
(ix) pursuant to which the Company or any Material Subsidiary of the Company has agreed to contribute capital any Liabilities (whether absolute, accrued, contingent or surplus to otherwise), as guarantor, surety, co-signer, endorser, co-maker, or otherwise in respect of any Person or guarantee the obligations obligation of any Person under (other than the Company or any insurance Subsidiary of the Company), or any capital maintenance, keep-well or similar agreements or arrangements in any such case that individually is in excess of $500,000;
(x) providing for the lease of real property with aggregate annual rent payments in excess of $100,000;
(xi) that would reasonably be expected to prohibit or materially delay the consummation of the Merger or otherwise materially impair the ability of the Company to perform its obligations hereunder;
(xii) that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any of its Subsidiaries;
(xiii) that provided for any acquisition by the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment or guarantee obligations;
(xiv) with any directors, executive officers (as such term is defined in the Exchange Act) or 5% Company Common Stockholders or any of their Affiliates (other than the Company or any of its Subsidiaries) or immediate family members, other than Contracts with an employee, consultant or independent contractor relating to employment or the provision of services;
(xv) that contains any material covenant granting “most favored nation” status that, following the Merger, would apply to or be affected by actions taken by Parent, the Surviving Corporation and/or their respective Subsidiaries or Affiliates;
(xvi) with a Governmental Entity or with a customer which, to the Knowledge of the Company, resells products or services of the Company or any of its Subsidiaries;
(xvii) that involves any exchange-traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contract, or any other interest-rate, commodity price, equity value or foreign currency protection contract;
(xviii) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any Equity Interests or assets that are material to the Company and its Subsidiaries, taken as a whole (other than in the ordinary course of business) of any Person; or
(Hxix) any material amendmentotherwise required to be filed as an exhibit to an Annual Report on Form 10-K, modification or supplement in respect as provided by Rule 601 of any Regulation S-K promulgated under the Exchange Act. Each Contract of the foregoingtype described in the immediately preceding sentence is referred to herein as a “Company Material Contract.” The Company has heretofore made available to Parent a complete and correct copy of each Company Material Contract, including any amendments or modifications thereto.
(iib) All of the contracts, agreements, instruments and documents set forth Each Company Material Contract is binding on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, its Subsidiary party thereto and, to the Knowledge of the Company, each other party thereto thereto, and is in accordance with their respective terms (except (A) as limited by applicable bankruptcyfull force and effect, insolvencyand, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability Knowledge of specific performancethe Company, injunctive relief or enforceable against each other equitable remedies or party thereto (C) in each case, subject to the Bankruptcy and Equity Exception), and the Company and each of its Subsidiaries have performed all obligations required to be performed by them under each Company Material Contract and, to the Knowledge of the Company, each other party to each Company Material Contract has performed all obligations required to be performed by it under such Company Material Contract, in each case except as would not reasonably be material expected to have a Company Material Adverse Effect. To the Knowledge of the Company, the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance has not received written notice of doubt, “Material Contracts” shall not include any contract that will be fully performed violation or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under (or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, condition that with the passage of time or the giving of notice, or both, would cause such a violation of or default under) any Company Material Contract, except for violations or defaults that would not reasonably be expected to have a Company Material Adverse Effect.
(c) To the Knowledge of the Company, as of the date hereof, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time), would reasonably be expected to: (i) result in a material defaultviolation or breach of any provision of any Company Material Contract, breach (ii) give any Person the right to declare a default under any Company Material Contract, or event of noncompliance(iii) give any Person the right to cancel terminate or modify any Company Material Contract, in each such case, by in a manner that would reasonably be expected to have a Company Material Adverse Effect.
(d) Except as set forth in Section 3.15(d) of the Company Disclosure Letter, with respect to any contract between the Company (or any one of the Material Subsidiaries under any such Material Contract. There are no outstandingits Subsidiaries) and a Governmental Entity or, pending, or to the Knowledge of the Company, threatened any contract with Governmental Entity as the ultimate customer under a contract between the Company and a customer (hereinafter a “Government Contract”), for the three (3) years prior to the date hereof: (i) the Company and each of its Subsidiaries have established and maintained adequate internal controls for compliance with Government Contracts and there has been no material disputes breach of contractual duties or the representations or certifications submitted in connection with respect any Government Contract or related bid or proposal; (ii) the invoices and any timekeeping records submitted to any such Material Contract. True, correct and complete copies of each Material Contract a customer or auditor in connection with Government Contracts have been made available accurate in all material respects, and adjustments, discounts, rebates and reimbursements required under Government Contracts or requested by a Governmental Entity have been promptly credited to the Purchaserscustomer and accurately recorded in all material respects in the financial records of the Company or the appropriate Subsidiary; (iii) no Government Contract has been awarded on the basis of a Small Business or other preferred bidder status, as defined by the applicable Governmental Entity; (iv) no Government Contract was awarded on the basis of disclosure of costs incurred by, or comparable pricing by, the Company or the applicable Subsidiaries, or includes any obligation regarding favorable or guaranteed pricing, or on the basis of payment of incurred costs; (v) no Government Contract has been the subject of a legal proceeding, subpoena or written document request, cure notice, show cause notice, or written (or, to the Knowledge of the Company, oral) notice of investigation or audit or investigation; and (vi) neither the Company nor any of its subsidiaries nor any of their respective officers, directors, principals or managers have been determined by a Governmental Entity as having a conflict of interest, nor been disqualified from participation in a procurement by a Governmental Entity, nor been suspended, debarred, or excluded (nor, to the Knowledge of the Company, been proposed for disqualification, suspension, debarment or exclusion) by a Governmental Entity, nor had access to confidential or non-public information to which (to the Knowledge of the Company) they were not lawfully entitled, nor made or offered or solicited or accepted any bribe, kickback or unlawful payment or item, service or benefit of value in connection with a Government Contract or with a Governmental Entity that is a party to a Government Contract.
Appears in 2 contracts
Sources: Merger Agreement (Thoma Bravo Fund Xii, L.P.), Merger Agreement (Imprivata Inc)
Contracts and Commitments. (a) As of the date hereof, Union is not a party to nor bound by any:
(i) Except “material contract” (as expressly contemplated such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to Union or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with Union’s Annual Report on Form 10-K for the year ended March 31, 2014, or any Union SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(ii) Contract (A) relating to the disposition or acquisition by Union or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement, other than in the Prior Purchase Agreements ordinary course of business consistent with past practice, or as set forth on (2) prior to the attached Schedule Kdate hereof, neither the Company nor which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of the Material Subsidiaries is a party them, to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary result in claims in excess of $3 million during the 12 month period ended on the Closing Date100,000 or (B) pursuant to which Union or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Union’s Subsidiaries;
(Biii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging right of Union to compete in any line of business or competing anywhere to conduct business with any Person or in any geographical area, (B) obligating Union 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 (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Union on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement under which Union has granted a Person an exclusive geographical area or under which Union paid commissions less than $100,000 to such Person in the world fiscal year ended March 31, 2014 or providing for exclusivity from whom Union received less than $100,000 from the sale of product to said Person in any business linethe fiscal year ended March 31, geographic area or otherwise2014;
(Cvi) Indebtedness involving liabilities Contract pursuant to which Union or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by Union or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Union or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period, or (ii) licenses Union Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $100,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any guaranty by Union or any of its Subsidiaries of third-party obligations (under which Union or any of its Subsidiaries has continuing obligations as of the date hereof) of $100,000 or more, other than any guaranty by Union or any of its Subsidiaries’ obligations;
(ix) Contract between Union, on the one hand, and any Affiliate of Union (other than a Subsidiary of Union), on the other hand;
(x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Union or its Subsidiaries;
(xi) Contract under which Union and Union’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $5 million;
(D) other than arising in 100,000 during the Ordinary Course of Business, any joint venture, partnership current or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractsubsequent fiscal year; or
(Hxii) any material amendment, modification or supplement in respect of Contract to enter into any of the foregoing.
(iib) All Visor has been given access to a true and correct copy of all written Union Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Union Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Union Material Adverse Effect, (i) Union is not in default under any Contract listed, or required to be listed, in Section 3.12(a) of the contracts, agreements, instruments and documents set forth on the attached Schedule K Union Disclosure Letter (each, a “Union Material Contract” and, collectively, the “Union Material Contracts”) are and (ii) to Union’s Knowledge, as of the date hereof, the other party to each of the Union Material Contracts is not in default thereunder. Each Union Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Union and, to the Knowledge of the CompanyUnion’s Knowledge, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingthereto. Neither the Company nor any As of the date hereof, no party to any Union Material Subsidiaries is in material default under or in material breach of, or in receipt of Contract has given any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or bothto Union’s Knowledge, would any notice (whether or not written) of termination or cancellation of any Union Material Contract or that it intends to seek to terminate or cancel any Union Material Contract (whether as a result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, transactions contemplated hereby or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersotherwise).
Appears in 2 contracts
Sources: Merger Agreement (Vision Sciences Inc /De/), Merger Agreement (Uroplasty Inc)
Contracts and Commitments. (ia) Except as expressly specifically contemplated by this Agreement, the Prior Purchase Agreements Agreement or as set forth on in Section 4.14(a) of the attached Schedule KDisclosure Schedule, neither the Company nor any of the Material Subsidiaries is not a party to or bound by any executory contractby, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K following Contracts (each, a “Material Contract”):
(i) Contract providing for payments (whether fixed, contingent or otherwise) by the Company in an aggregate annual amount of $50,000.00 or more, or to the Company in an aggregate annual amount of $50,000.00 or more;
(ii) bonus, commission, pension, profit sharing, retirement or any other form of deferred compensation or incentive plan or agreement or any membership unit purchase, unit option, warrant or similar employee benefit plan or practice;
(iii) employment agreement for the employment of any officer, individual employee or other Person, contract or agreement with consultants or independent contractors, severance agreements, or any agreement with a change-of-control provision;
(iv) Contract relating to Indebtedness (including guaranty arrangements) or to mortgaging, pledging or otherwise placing a Lien on any of the Company Assets, the Membership Units, or any guaranty of an obligation of a third party;
(v) royalty, dividend or similar arrangement based on the revenues or profits of the Company or any contract or agreement involving fixed price or fixed volume arrangements;
(vi) Contract which contains any provisions requiring the Company to indemnify any other party, other than independent sales representative Contracts that are based upon and do not deviate in any material respect from the Standard Form Agreements;
(vii) Contract containing Inbound Licenses and/or Outbound Licenses, other than licenses for Open Source Software listed in Section 4.13(l) of the Disclosure Schedule, licenses for Generally Available Commercial Code and Standard Form Agreements;
(viii) Contract or group of related Contracts which are not cancellable by the Company without penalty on not less than thirty (30)-days’ notice;
(ix) Contract relating to the ownership of or investment in any business or enterprise (including investments in joint ventures and minority equity investments);
(x) lead generation, dealer, distributor, reseller, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, license, sublicense, lease, distribute, market or take orders for any Company Product or provide marketing services (including referral partners) for the foregoing, other than independent sales representative Contracts that are based upon and do not deviate in any material respect from the Standard Form Agreements;
(xi) Contract limiting the freedom of the Company, or that would limit the freedom of Buyer or any of its Affiliates after the Closing Date, to freely engage in any line of business or with any Person anywhere in the world or during any period of time or otherwise including provisions on joint price-fixing, market or customer sharing, exclusivity or market classification, or preferred pricing provisions, such as a “most favored nation” provision;
(xii) Contract with any Governmental Authority, university, college or research center;
(xiii) Contract relating to the lease of any real property or the lease of any tangible personal property;
(xiv) other than this Agreement and the Pearl Acquisition Agreement, acquisition agreement, whether by merger, share or asset sale or otherwise;
(xv) Contract relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any equity securities (including Membership Units) or any options, warrants or other rights to purchase or otherwise acquire any such equity securities (including Membership Units), other securities or options, warrants or other rights for the foregoing;
(xvi) Contract with any labor union or any collective bargaining agreement or similar Contract with any labor union or labor organization or other person purporting to act as exclusive bargaining representative of any employees or Contingent Workers;
(xvii) Contract relating to the settlement or other resolution of any Action or threatened Action (including any agreement under which any employment-related claim is settled);
(xviii) Contract to provide or deliver any Company Product, or to support or maintain any Company Product, on, in conjunction with, or interoperating with any third party’s products or services, and each commitment to develop, improve or customize any Company Product;
(xix) Contracts with any customer or other Person under which the Company agreed to develop or customize any product or services of the Business, or to provide support for, customize or develop any third-party product, service or platform if such Company obligations have not been fully satisfied and completed as of the Agreement Date;
(xx) Contract not executed in the Ordinary Course of Business, not consistent with fair market terms, conditions and prices or with applicable Laws and regulations or otherwise not made on arm’s length terms and conditions; or
(xxi) other Contract material to the Company, taken as a whole.
(b) Each Contract that is listed or should have been listed in Section 4.14(a) of the Disclosure Schedule (or would have been required to be so listed if entered into after the Agreement Date but prior to Closing) to which the Company is a party or any of its properties or assets (whether tangible or intangible) are validsubject, together with the Standard Form Agreements and licenses for Generally Commercially Available Code (each, a “Company Contract”) is a valid and binding and agreement of the Company, enforceable against the Company or in accordance with its terms, and is in full force and effect with respect to the respective Material Subsidiary, as applicable, Company and, to the Knowledge of the Company, each any other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating subject to the availability General Enforceability Exceptions. Except as set forth in Section 4.14(b) of specific performancethe Disclosure Schedule, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall has not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company violated nor any of the Material Subsidiaries is in violation of, in any material default under respect, any provision of, nor has committed or in failed to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, or in receipt of any written claim of such material a default or material breachan event of default under the provisions of, under any Material Company Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to To the Knowledge of the Company, threatened material disputes with respect (i) no Person other than the Company that is party to any such Material Company Contract, has violated or is in violation of, in any material respect, any provision of, or has committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the provisions of any Company Contract, (ii) there are no facts or circumstances that would reasonably be expected to result in a violation of, in any material respect, any provision of, or the failure to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the provisions of any Company Contract by the Company or any other Person, and (iii) the Company has not received any written notice of any other party to any Company Contract intending to terminate, fail or refuse to renew, renegotiate or change the scope of rights or obligations or materially modify the terms thereof. TrueTo the Knowledge of the Company, correct none of the Company Contracts are subject to any claims, charges, set offs or defenses. As of the Agreement Date, there are no new Contracts that are being actively negotiated and complete copies that would be required to be listed in Section 4.14(a) of each Material Contract have been made available to the PurchasersDisclosure Schedule.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (CarGurus, Inc.), Membership Interest Purchase Agreement (CarGurus, Inc.)
Contracts and Commitments. Schedule 4.13 hereto sets forth a complete and accurate list of:
(a) Each Contract (other than open purchase orders) that involves the performance of services or the delivery of goods or materials by Eldorado and/or any Subsidiary of an amount or value in excess of $175,000;
(b) Each Contract (other than open sales orders) that involves the performance of services for or the delivery of goods or materials to Eldorado and/or any Subsidiary of amount or value in excess of $175,000;
(c) Each Contract that was not entered into in the ordinary course of business that involves expenditures or receipts in excess of $175,000;
(d) Each license or other Contract with respect to the Eldorado Intellectual Property Rights other than with respect to commercially available software;
(e) Each Contract for capital expenditures in excess of $175,000;
(f) Each Contract or commitment relating to the borrowing of money or a line of credit or pursuant to which Eldorado and/or any Subsidiary has guaranteed any Indebtedness or obligation of any Person;
(g) Each Contract with respect to environmental remediation at any facility or property now or formerly owned by Eldorado and/or any Subsidiary;
(h) Each representative, distribution, marketing or sales agency Contract or commitment;
(i) Except as expressly contemplated Each Contract containing covenants limiting the freedom of Eldorado and/or any Subsidiary to engage in any line of business or to compete with any Person or covenants of another Person not to compete with Eldorado or any Subsidiary;
(j) Each sole source supply Contract for the purchase of any material raw material, component or product that is otherwise not generally available and that is used in the manufacture of any product of the Business;
(k) Each guaranty and indemnity by Eldorado and/or any Subsidiary to any Person in connection with the supply of components or raw materials to the Business; and
(l) All other Contracts not otherwise described in this AgreementSection 4.13, the Prior Purchase Agreements absence, or as set forth on existence, of which is reasonably likely to have a Material Adverse Effect;
(m) All Contracts with respect to the attached Schedule Kacquisition of any other entity, neither business, line of business or material amount of assets;
(n) All Contracts (including, but not limited to, employment, severance, change of control or consulting) with executive officers of Eldorado or any of the Company Subsidiaries and each commission, agency and representative Contract (other than unwritten employment arrangements terminable at will without payment of any contractual severance or other amount);
(o) Each Contract with respect to the sharing of profits, revenues, losses, costs or liabilities of any Person or entity other than one or more of the Eldorado Entities;
(p) Neither Eldorado nor any of the Material Subsidiaries is a party to is, or bound by any executory contracthas received written notice that it is, lease, license in violation or other agreement (whether written breach of or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person default under any insurance contract; or
such Contract (H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company with notice or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving of notice, or both, would result in a material default, be violation or breach of or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries default under any such Material Contract). There are no outstanding, pending, or to Each of Eldorado and each Subsidiary has complied with the Knowledge provisions of the Company, threatened above Contracts in all material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersrespects.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Headwaters Inc), Securities Purchase Agreement (Headwaters Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on Section 3.11(a) of the attached Schedule KSeller Disclosure Letter, neither no Target Company is party to any:
(i) CBA;
(ii) Contract, agreement or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Target Company has incurred or may incur Indebtedness exceeding the Company nor Threshold Amount for which any of any Target Company will be liable following the Material Subsidiaries Closing, or (B) relating to any Liens on assets of any Target Company;
(iii) guaranty of any Indebtedness or other material guaranty;
(iv) Contract, lease or agreement under which it is a party to lessee of, or bound holds, uses or operates any real or personal property or assets owned by any executory contractother party, leasefor which the annual rental or payment commitment exceeds the Threshold Amount;
(v) Contracts or group of related Contracts with any Top Customer or any Top Supplier;
(vi) Contracts or agreements relating to the acquisition or disposition (whether by merger, license sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company since the Look-back Date or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company or, pursuant to which any Target Company have any continuing “earn out” or other contingent payment obligations or any surviving material indemnification obligations;
(vii) joint venture, partnership, limited liability company or similar agreement with any third party (whether written including any agreement providing for joint development or oral) that involves:marketing);
(A) payments Contract pursuant to which any Target Company licenses, or is otherwise permitted by a third party to practice, use or register, or receive any other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
Threshold Amount per year), (B) prohibiting Contract pursuant to which a third party licenses, or materially limiting is permitted to use or restricting the Company register, or granted any Material Subsidiary from freely engaging in other rights under, any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
Company-Owned IP Rights (C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising non-exclusive licenses granted by a Target Company to customers in the Ordinary Course of Business), or (C) Contract affecting any joint ventureTarget Company’s ability to use, partnership enforce, or other cooperative arrangement disclose any material Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or similar arrangement involving a sharing of profits or otherwisesettlement agreements;
(Eix) “most favored nations” provisionsdistribution, sales representative, marketing or similar Contract or agreement that required any Target Company to make commission payments under such agreement in excess of the Threshold Amount during the twelve (12)-month period ended on the Balance Sheet Date;
(Fx) Contract or agreement pursuant to which any Target Company would be required to make, in the aggregate, capital expenditures in excess of the Threshold Amount;
(xi) Contract or agreement that (a) materially limits the ability of any Target Company to compete in any line of business or with any product or with any Person or in any geographic area or market or during any period of time or (b) contains covenants that restrict the business activity of any Target Company in any material respect (other than arising non-disclosure agreements entered into in the Ordinary Course of Business);
(xii) Contract or agreement that contains “most-favored-nation” obligations or restrictions, material third-party administration or other insurance policy administration relating rights of first refusal or offer or any similar requirement or right, in each case binding any Target Company in favor of any third party;
(xiii) Contract or agreement where any Target Company is subject to the Insurance a requirement of exclusive dealing or any similar exclusivity obligation;
(xiv) any interest, currency or hedging derivatives or similar Contracts;
(Gxv) a capital maintenance contract, keepwell Contract or similar agreement pursuant to which any Person has agreed to contribute capital that limits the incurrence of Indebtedness or surplus to the Company declaration or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations payment of any Person under dividends or other distributions;
(xvi) Contract or agreement that involves payment to or by any insurance contractTarget Company in excess of the Threshold Amount annually;
(xvii) Contract or agreement whose termination (other than those termination by passage of time) would have a Seller Material Adverse Effect;
(xviii) management agreement or other Contract for the employment or engagement of any Service Provider on a full time, part time, consulting or other basis that: (A) provides for annual compensation (whether cash and/or otherwise) which may exceed $150,000, (B) provides for the payment of any cash or other compensation or benefits upon or in connection with the consummation of the transactions contemplated by this Agreement, (C) provides for the payment of any cash or other compensation or benefits related to a retention, severance, transaction-based or change in control bonus or other similar Contract with any Service Provider or (D) restricts any Target Company’s ability to terminate the employment or engagement of any Service Provider at any time for any lawful reason or for no reason without penalty or Liability; or
(Hxix) any material amendment, modification Contract or supplement in respect agreement that relates to the settlement of any Action (A) with any Governmental Authority since the Look-back Date; (B) that materially restricts or imposes obligations upon any Target Company; or (C) requires payment by an Target Company of more than the foregoingThreshold Amount after the date hereof.
(iib) All Each Contract described in clauses (i) through (xix) of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, Section 3.11(a) is a “Material Contract”. Seller has provided to Purchaser true and correct copies of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto.
(c) are valid, binding and enforceable against the Neither any Target Company or the respective Material Subsidiary, as applicable, andnor, to the Knowledge of the CompanySeller’s Knowledge, each any other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, violation of or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, that with the passage notice or lapse of time or the giving of notice, or both, both would result in constitute a material defaultbreach of, breach violation of or event of noncompliancedefault under, any Material Contract by any Target Company, or, to Seller’s Knowledge, any counterparty. All Material Contracts are valid and in each such casefull force and effect and constitute legal, by the Company or any valid and binding obligations of the Material Subsidiaries under any such Material Contract. There applicable Target Company and, to Seller’s Knowledge, each counterparty, and are no outstandingenforceable against the applicable Target Company and, pendingto Seller’s Knowledge, or to the Knowledge counterparty thereto in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the Company, threatened material disputes with respect to any such Material Contract. True, correct availability of specific performance and complete copies of each Material Contract have been made available to the Purchasersother equitable remedies.
Appears in 2 contracts
Sources: Business Combination Agreement (Alternus Clean Energy, Inc.), Business Combination Agreement (Clean Earth Acquisitions Corp.)
Contracts and Commitments. (ia) Except as expressly contemplated by this AgreementSchedule 5.14(a) attached hereto contains a complete and accurate list of all contracts, the Prior Purchase Agreements or as set forth on the attached Schedule Kagreements, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contractcommitments, lease, license or other agreement instruments and obligations (whether written or oral, proposed, contingent or otherwise) that involves:of the Company Entities concerning the following matters (collectively, the “Company Agreements”):
(Ai) payments by the Company and/or lease, as lessee or lessor, or license, as licensee or licensor, or purchase or sale of any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Datematerial personal property (tangible or intangible);
(Bii) prohibiting the employment or materially limiting engagement of any officer, director or restricting the Company employee, or any Material Subsidiary from freely engaging in consultant or agent, other than those terminable at will without any business severance obligation, and any covenant not to compete or competing anywhere in the world separation agreement with any current or providing for exclusivity in any business lineformer officer, geographic area director or otherwiseemployee;
(Ciii) Indebtedness involving liabilities in excess the engagement of $5 millionany medical director and any covenant not to compete or separation agreement with any current or former medical director;
(Div) other than arising in the Ordinary Course of Business, provision for any joint venture, partnership payments or other cooperative arrangement benefits, directly or similar arrangement involving indirectly, as a sharing result of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising a change in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect control of any of the foregoingCompany Entities, including, without limitation, the transaction contemplated by this Agreement;
(v) the incurrence of indebtedness or making of any loans or the granting of any Lien on any Company Entity’s assets;
(vi) any arrangement between any Company Entity and any Affiliate of the Company Entities or any immediate family member of any such Affiliate;
(vii) any arrangement limiting the freedom of any Company Entity to compete, solicit customers or solicit employees in any manner in any geographic area or line of business, or requiring any Company Entity to share profits;
(viii) any arrangement not in the ordinary course of business under which any Company Entity has agreed to assume Liabilities of another party or indemnify or hold harmless another party;
(ix) any charitable commitment in excess of Fifty Thousand Dollars ($50,000) in any calendar year;
(x) any arrangement that would be reasonably likely to have a Company Material Adverse Effect;
(xi) any power of attorney, whether limited or general, granted by or to any Company Entity;
(xii) any joint venture agreement, acute services agreement or facility management agreement;
(xiii) any arrangement with customers, patients, managed care organizations, third party payors, pharmacy benefit managers, or suppliers (including pharmaceutical and drug suppliers) that requires financial payments in the aggregate in excess of Fifty Thousand Dollars ($50,000) or performance over a period of more than ninety (90) calendar days; and
(xiv) any other arrangement not in the ordinary course of business that requires performance for a period of more than ninety (90) calendar days or that requires aggregate payments in excess of Fifty Thousand Dollars ($50,000).
(b) The Company has delivered or made available to Parent or its representatives true and complete copies of all of the written Company Agreements. Except as indicated in Schedule 5.14(b) attached hereto, the Company Agreements are valid and effective in accordance with their terms, and there is not under any of such Company Agreements (i) any existing or claimed default by any Company Entity or event which, with the notice or lapse of time, or both, would constitute a default by any Company Entity thereunder, or (ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each any existing or claimed default by any other party thereto in accordance or event which with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws notice or lapse of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of noticetime, or both, would constitute a material default by any such party. Except as indicated in Schedule 5.14(b) attached hereto, the continuation, validity and effectiveness of the Company Agreements will not be affected by the Merger, and the Merger will not result in a material default, breach of or event of noncompliance, in each such case, default by the Company Entities under, or require the Consent of any other party to, any of the Material Subsidiaries under any such Material ContractCompany Agreements. There are is no outstandingactual or written threatened termination, pending, cancellation or to the Knowledge limitation of any of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersCompany Agreements.
Appears in 2 contracts
Sources: Merger Agreement (Allion Healthcare Inc), Merger Agreement (Allion Healthcare Inc)
Contracts and Commitments. (a) As of the date hereof, Ranger is not a party to nor bound by any
(i) Except “material contract” (as expressly contemplated such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to Ranger or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with Ranger’s Annual Report on Form 10-K for the year ended December 31, 2013, or any Ranger SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(ii) Contract (A) relating to the disposition or acquisition by Ranger or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement, other than in the Prior Purchase Agreements ordinary course of business consistent with past practice, or as set forth on (2) prior to the attached Schedule Kdate hereof, neither the Company nor which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of the Material Subsidiaries is a party them, to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary result in claims in excess of $3 million during the 12 month period ended on the Closing Date1,000,000 or (B) pursuant to which Ranger or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Ranger’s Subsidiaries;
(Biii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging right of Ranger to compete in any line of business or competing anywhere in the world to conduct business with any Person or providing for exclusivity in any business linegeographical area, geographic (B) obligating Ranger 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 (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Ranger on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or otherwisesimilar agreement under which Ranger has granted a Person an exclusive geographical area and under which Ranger paid commissions less than $1,000,000 to such Person in 2013 or from whom Ranger received less than $1,000,000 from the sale of product to said Person in 2013;
(Cvi) Indebtedness involving liabilities Contract pursuant to which Ranger or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by Ranger or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Ranger or any Subsidiary of royalties or license fees exceeding $1,000,000 in any twelve (12) month period, or (ii) licenses Ranger Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $1,000,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any guaranty by Ranger or any of its Subsidiaries of third-party obligations (under which Ranger or any of its Subsidiaries has continuing obligations as of the date hereof) of $1,000,000 or more, other than any guaranty by Ranger or any of its Subsidiaries’ obligations;
(ix) Contract between Ranger, on the one hand, and any Affiliate of Ranger (other than a Subsidiary of Ranger), on the other hand;
(x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Ranger or its Subsidiaries;
(xi) Contract under which Ranger and Ranger’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $5 million;
(D) other than arising in 1,000,000 during the Ordinary Course of Business, any joint venture, partnership current or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractsubsequent fiscal year; or
(Hxii) any material amendment, modification or supplement in respect of Contract to enter into any of the foregoing.
(iib) All Trooper has been given access to a true and correct copy of all written Ranger Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Ranger Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Ranger Material Adverse Effect, (i) Ranger is not in default under any Contract listed, or required to be listed, in Section 3.12(a) of the contracts, agreements, instruments and documents set forth on the attached Schedule K Ranger Disclosure Letter (each, a “Ranger Material Contract” and, collectively, the “Ranger Material Contracts”) are and (ii) to Ranger’s knowledge, as of the date hereof, the other party to each of the Ranger Material Contracts is not in default thereunder. Each Ranger Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Ranger and, to the Knowledge of the CompanyRanger knowledge, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingthereto. Neither the Company nor any As of the date hereof, no party to any Ranger Material Subsidiaries is in material default under or in material breach of, or in receipt of Contract has given any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge knowledge of Ranger, any notice (whether or not written) of termination or cancellation of any Ranger Material Contract or that it intends to seek to terminate or cancel any Ranger Material Contract (whether as a result of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserstransactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (Wright Medical Group Inc), Merger Agreement (Tornier N.V.)
Contracts and Commitments. (ia) Except as expressly contemplated by this AgreementSchedule 6.12 contains a complete and accurate list of all contracts, the Prior Purchase Agreements or as set forth on the attached Schedule Kagreements, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contractcommitments, lease, license or other agreement instruments and obligations (whether written or oral, contingent or otherwise) that involves:
of Rainwire of or concerning the following matters which involve (Ai) payments by the Company and/or any Material Subsidiary or to Rainwire in excess of $3 million during 5,000, (ii) performance by or for Rainwire of services or obligations the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities value of which is in excess of $5 million5,000, or (iii) performance by or for Rainwire of services or obligations for greater than 90 days (the "Rainwire Agreements"):
(i) the lease (as lessee or lessor) or license (as licensee or licensor) of any real or personal property (tangible or intangible);
(Dii) the employment or engagement of any officer, director, employee, consultant or agent;
(iii) any relationship with any Rainwire Shareholder, or any person or entity affiliated with or related to any Rainwire Shareholder or any officer, director, employee, consultant or agent of Rainwire;
(iv) any arrangement limiting the freedom of Rainwire to compete in any manner in any line of business;
(v) any arrangement that could reasonably be anticipated to have a Rainwire Material Adverse Effect;
(vi) any arrangement not in the ordinary course of business;
(vii) any power of attorney, whether limited or general, granted by or to Rainwire;
(viii) any agreements relating to the making of any loan or advance by Rainwire;
(ix) any agreements providing for the indemnification by Rainwire of any Person;
(x) any agreements with any Authority except those entered into in the ordinary course of business which are not material to Rainwire;
(xi) any broker, distributor, dealer or representative or agency agreements pursuant to which Rainwire made payments in excess of $25,000 during the preceding fiscal year;
(xii) any agreements (including settlement agreements) currently in effect pursuant to which Rainwire licenses the right to use any Intellectual Property to any Person or from any Person (other than arising license agreements related to off-the-shelf software products);
(xiii) any confidentiality agreements entered into by Rainwire during the period commencing three years prior to the date hereof pursuant to which confidential information has been provided to a third party or by which Rainwire was restricted from providing information to third parties, other than confidentiality agreements entered into in the Ordinary Course normal course of Business, business;
(xiv) any voting trust or similar agreements relating to any of the ownership interests in Rainwire to which any of the Rainwire Shareholders or Rainwire is a party;
(xv) any joint venture, partnership or other cooperative arrangement similar documents or similar arrangement involving a sharing of profits or otherwise;agreements; and
(Exvi) “most favored nations” provisions;
(F) other than arising in any agreement that materially limits or purports to materially limit the Ordinary Course ability of BusinessRainwire to own, material third-party administration operate, sell, transfer, pledge or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations otherwise dispose of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingassets.
(iib) All Rainwire has delivered or will deliver to Oasis true and complete copies of all Rainwire Agreements. Except as indicated on Schedule 6.12, the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) Rainwire Agreements are valid, binding valid and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as to the extent limited by applicable equitable principles or bankruptcy, insolvency, reorganization, moratorium and other Laws of general application reorganization or similar laws affecting the enforcement of creditors’ ' rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would and there is not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor under any of the Material Subsidiaries is in material such contracts (i) any existing or claimed default under by Rainwire or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, which with the passage notice or lapse of time or the giving of noticetime, or both, would constitute a default by Rainwire or (ii) to the knowledge of Rainwire, any existing or claimed default by any other party or event which with notice or lapse of time, or both, would constitute a default by any such party. Except as indicated on Schedule 6.12, the continuation validity and enforceability of the Rainwire Agreements will not be affected by the Share Exchange and the Share Exchange will not result in a material defaultbreach of, breach or event default under, or require the consent of noncompliance, in each such case, by the Company or any other party to any of the Material Subsidiaries under any such Material ContractRainwire Agreements. There are Except as set forth on Schedule 6.12, there is no outstandingactual or, pending, or to the Knowledge knowledge of the CompanyRainwire, threatened material disputes termination, cancellation or limitation of any Rainwire Agreements that would have a Rainwire Material Adverse Effect. To the knowledge of Rainwire, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available other party to the PurchasersRainwire Agreements.
Appears in 2 contracts
Sources: Plan and Agreement to Exchange Stock (Rainwire Partners Inc /De/), Share Exchange Agreement (Rainwire Partners Inc /De/)
Contracts and Commitments. (a) Sellers have made available to Purchaser true and complete copies of all Assumed Contracts. Schedule 5.14 sets forth a true and complete list of all the Contracts (other than Intellectual Property Licenses and Real Property Leases) of the following types to which either Seller is a party and that are Related to the Business:
(i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) Contract that involves:
either (A) requires a payment by any party in excess of, or a series of payments by that in the Company and/or aggregate exceed, $100,000 or provides for the delivery of goods or performance of services, or any Material Subsidiary combination thereof, having a value in excess of $3 million during 100,000, (B) has a term of, or requires the performance of any obligations by any party over a period in excess of, 12 month period ended months or (C) is not cancelable by a Seller on the Closing Datenotice of not longer than 90 days;
(Bii) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseShared Contract;
(Ciii) Indebtedness involving liabilities any Contract with a licensor, developer, remarketer, distributor, and supplier of IT Assets or information technology services to a Seller Related to the Business pursuant to which a Seller paid, was billed or billed in the aggregate $100,000 or more during the most recent fiscal year;
(iv) any material Contract pursuant to which either Seller has made or will make loans or advances in an amount in excess of $5 million;
(D) 100,000, other than arising in the Ordinary Course of Business;
(v) any Contract involving a partnership, any joint venture, partnership venture or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwiseundertaking;
(Evi) “most favored nations” provisions;
(F) other than arising any Contract containing commitments of suretyship, guaranty or indemnification by a Seller Related to the Business except in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(Gvii) a any Contract for any material capital maintenance contract, keepwell expenditures or similar material leasehold improvements;
(viii) any power of attorney or agency agreement or arrangement with any Person pursuant to which such Person is granted the authority to act for or on behalf of either Seller in connection with the Business;
(ix) any Software Contract;
(x) any Post-Petition Contract;
(xi) any other Contract not made in the Ordinary Course of Business that is to be performed in whole or in part at or after the date of this Agreement; and
(xii) any Contract not specified above the termination of which would result in a Material Adverse Effect.
(b) No Seller is subject to a non-competition agreement or similar Contract with respect to the Business.
(c) No Seller has outstanding any material Contract Related to the Business to acquire any debt obligations of others, other than acquisitions of delinquent and defaulted receivables and Advances (including the reimbursement thereof) or in the Ordinary Course of Business.
(d) Except to the extent that Advances may be deemed to be loans, no Seller has any material outstanding loan to any Person has agreed to contribute capital or surplus Related to the Company or any Material Subsidiary or any capital maintenance contract Business, it being understood that obligations to reimburse employees for relocation, business, travel, entertainment or similar agreement pursuant expenses incurred in the Ordinary Course of Business shall not be deemed loans for such purposes.
(e) Except as set forth on Schedule 5.14(e), all Contracts Related to the Business to which a Seller is a party and to which the Company Purchased Assets or any Material Subsidiary has agreed Assumed Liabilities are subject are in full force and effect and, subject to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendmentEnforceability Exceptions, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective the express terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingthereof. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to To the Knowledge of the CompanySellers, threatened there are no material disputes with respect to pending or threatened under any such Material Contract. True, correct and complete copies of each Material Contract have been made available to included in the PurchasersPurchased Assets or Assumed Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (New Century Financial Corp)
Contracts and Commitments. (a) The Company has made available to Parent copies of the following Contracts of the Company, together with all amendments or waivers pertaining thereto, which are currently in effect as of the date hereof (the “Material Contracts”):
(i) Except as expressly contemplated by this Agreement, Contracts (other than purchase orders entered into in the Prior Purchase Agreements ordinary course of business) which involve commitments to make capital expenditures or as set forth on which provide for the attached Schedule K, neither the Company nor any purchase of the Material Subsidiaries is a party to goods or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments services by the Company and/or from any Material Subsidiary one Person under which the undelivered balance of such products or services has a purchase price in excess of Ten Thousand Dollars ($3 million during the 12 month period ended on the Closing Date10,000);
(Bii) prohibiting Contracts (other than purchase orders entered into in the ordinary course of business) which provide for the sale of products or materially limiting or restricting services by the Company and under which the undelivered balance of such products or any Material Subsidiary from freely engaging services has a sale price in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseexcess of Ten Thousand Dollars ($10,000);
(Ciii) Indebtedness Contracts relating to the borrowing of money by the Company, to the granting by the Company of a Lien on any of its assets, or any guaranty by the Company of any obligation or liability in any case involving liabilities a liability in excess of Ten Thousand Dollars ($5 million10,000);
(Div) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement Contracts pursuant to which the Company is a lessor or a lessee of any Material Subsidiary has agreed to contribute capital property, personal or surplus real, or holds or operates any tangible personal property owned by another Person, except for any leases of personal property;
(v) Contracts for the use, license or sublicense of any Proprietary Rights owned or licensed by the Company or otherwise used in the Business (other than any license of mass-marketed or otherwise generally available software);
(vi) any power of attorney (whether revocable or irrevocable) given to any Person by the Company;
(vii) Contracts by the Company not to compete in any business or guarantee in any geographical area or with respect to which the obligations Company is the beneficiary of any Person under any insurance contract; ornon-compete provision;
(Hviii) Contracts restricting the right of the Company to use or disclose any information in its possession or with respect to which the Company is the beneficiary of any confidentiality, nondisclosure or non-use provision;
(ix) any material amendmentpartnership, modification joint venture or supplement in respect of any of the foregoing.other similar arrangements;
(iix) All of the contracts, any employment agreements, instruments severance agreements, bonus agreements and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge non-competition agreements with employees of the Company; and
(xi) any Contract with any officer, each director, shareholder or any of their respective Affiliates. (b) ) With respect to such Company Material Contracts: (i) the Company has not materially breached or cancelled any Material Contract; ( ii) to the Company’s Knowledge, none of the Company’s Material Contracts have been breached in any respect or canceled by the other party thereto in accordance with their respective terms which has not been duly cured or reinstated; (except (Aiii) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performanceCompany’s Knowledge, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall is not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No ; (iv) to the Company’s Knowledge, no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material default, breach or event of noncompliancedefault under any Contract or create in any Person the right to accelerate, in each such casesuspend, by terminate, modify, cancel or exercise any other material right under any Company Material Contract; (v) no Person has given notice to the Company or of repudiation of any provision of the Material Subsidiaries under any such Material Contract. There are no outstanding; and (vi) the Company has not received any notice of any, pending, or and to the Company’s Knowledge there is no, impending change of any business relationship with any Person with whom the Company has a material business relationship. To the Company’s Knowledge, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersis valid, binding and in full force and effect and enforceable in accordance with its terms.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Ampio Pharmaceuticals, Inc.)
Contracts and Commitments. (a) As of the date of this Agreement, other than as set forth in Section 3.13(a) of the Company Disclosure Letter, neither the Company, any of its Subsidiaries nor any of their respective assets or properties is a party to or bound by any:
(i) Except “material contract” (as expressly contemplated such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the year ended December 30, 2018, or any Company SEC Documents filed after the date of filing of such Form 10-K until one (1) Business Day prior to date of this Agreement;
(ii) Contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of a material amount of assets (1) after the date of this Agreement, other than the Prior Purchase Agreements sale of inventory in the ordinary course of business consistent with past practice, or (2) prior to the date of this Agreement, that contains any ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations or payments) that are still in effect that would reasonably be expected to be in excess of $2,500,000 or (B) pursuant to which the Company or any of its Subsidiaries will acquire any ownership interest in any other person or other business enterprise other than the Company’s Subsidiaries;
(iii) Contract providing for the employment, engagement, retention or termination 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 thirty (30) days’ notice without incurring any liability (other than any Company Plan);
(iv) collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(v) Contract establishing any research and development collaboration, joint venture, partnership, alliance, or similar arrangement, or that imposes any co-promotion obligations with respect to any product or product candidate of the Company or any of its Subsidiaries (it being understood that the foregoing excludes any service or product development Contracts with health care providers entered into in the ordinary course of business consistent with past practice);
(vi) Contract described in sub-clause (xv) or (xvi) of this Section 3.13(a) (A) prohibiting, restricting or limiting, or that purports to prohibit, restrict or limit, the right of the Company or any of its Subsidiaries to compete or to engage in any line or type of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party, to purchase a specified minimum amount of goods or services, sell any product or service exclusively to a single party or conduct any business on an exclusive basis with any third Person or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of the Company or any of its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(vii) Contracts in respect of Indebtedness of $2,500,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly owned Subsidiaries or other loans between or among the Company and its direct or indirect wholly owned Subsidiaries or between or among the Company’s Subsidiaries and Affiliates, in each case in the ordinary course of business consistent with past practice;
(viii) Contract (other than any Company Plan) between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(ix) Contract relating to the voting or registration of any securities;
(x) Contract containing a right of first refusal, right of first negotiation, right of first offer, put, call, redemption, repurchase or similar right with respect to any equity interests, properties or assets that have a fair market value or purchase price of more than $2,500,000 in favor of a party other than the Company or its Subsidiaries;
(xi) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $3,000,000 during the current or a subsequent fiscal year;
(xii) Settlement agreements, or agreements entered into in connection with settlement agreements, corporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of agreements with Governmental Bodies that have existing or contingent performance obligations;
(xiii) Contracts of the Company or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing material obligations on the part of the Company or any of its Subsidiaries;
(xiv) Contracts of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the share capital of the Company or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of share capital of the Company or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries, other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xv) Contracts with third-party manufacturers or suppliers for the manufacture or supply of materials or products in the supply chain for Products that involve payments in excess of $2,000,000 during the current fiscal year or that involve payments that are reasonably expected to be in excess of $2,000,000 in a subsequent fiscal year;
(xvi) an agency, sales, marketing, commission, distribution, international or domestic sales representative or similar Contract involving payments in excess of $3,000,000 during the current fiscal year or are reasonably expected to in a subsequent fiscal year;
(xvii) Contract that creates or would create a Lien (other than a Permitted Lien) on any material asset or property of the Company or any of its Subsidiaries;
(xviii) IP Contracts;
(xix) 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);
(xx) Contract which provides for a loan or advance of any amount to any employee of the Company or any temporary agency employee, consultant or other independent contractor of the Company or any of its Subsidiaries, in each case, in excess of $100,000 individually, other than the ordinary course of business;
(xxi) Contract described in sub-clauses (i) through (xx) with any Governmental Body, except for commercial tenders made outside of the United States in the ordinary course of business; or
(xxii) Contract to enter into any of the foregoing. Each such Contract described in sub-clauses Section 3.13(a)(i) through Section 3.13(a)(xxii) above of this Section 3.13(a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Lease, is referred to herein as a “Company Material Contract.”
(b) Except as set forth on in Section 3.13(b) of the attached Schedule KCompany Disclosure Letter, true, correct and complete copies of all written Company Material Contracts, together with all material amendments, waivers or other changes thereto have been made available to Parent, and a true, correct and complete written summary setting forth the terms and conditions of each oral Company Material Contract has been made available to Parent.
(c) Except as would not be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of the Material its Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by is in violation or breach of or default (with or without notice or lapse of time or both) under the terms of any Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
Contract or (B) prohibiting has waived, failed to enforce or materially limiting assigned any rights or restricting benefits under any Company Material Contract. Each Company Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicableits Subsidiaries, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken whether as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any result of the Material Subsidiaries is in material default under Transactions or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersotherwise).
Appears in 2 contracts
Sources: Purchase Agreement (Stryker Corp), Purchase Agreement (Wright Medical Group N.V.)
Contracts and Commitments. (a) Schedule 4.15 annexed hereto lists all material contracts, leases, commitments, technology agreements, software development agreements, software licenses, indentures and other agreements to which the Corporation is a party (collectively, "Material Contracts") including, without limitation, the following: (i) Except as expressly contemplated any contract for the purchase of equipment, supplies, other materials, or other inventory items other than purchase orders for supplies entered into in the ordinary course of business; (ii) any contract related to the purchase or lease of any capital asset involving aggregate payments of more than $5,000 per annum that is not cancelable by this Agreementthe Corporation on less than thirty (30) days notice; (iii) all technology agreements, software development agreements and software licenses (except for pre-printed licenses for commercially available and non-custom software applications) involving the Corporation or any Affiliate, regardless of the duration thereof or the amount of payments called for or required thereunder; (iv) any guarantee, make-whole agreement, or similar agreement or undertaking to support, directly or indirectly, the Prior Purchase Agreements financial or as set forth other condition of any other person or entity; (v) each contract for or relating to the employment of any officer, employee, technician, agent, consultant, or advisor to or for the Corporation that is not cancelable by the Corporation without penalty, premium or liability (for severance or otherwise) on less than thirty (30) days' prior written notice; (vi) license, royalty, franchise, distributorship, dealer, manufacturer's representative, agency and advertising agreements; (vii) any contract with any collective bargaining unit; (viii) any mortgage of real property; (ix) any factoring agreement with respect to the attached Schedule K, neither the Company nor any accounts receivable of the Material Subsidiaries is a party Corporation; (x) any pledge or other security agreement by the Corporation other than guaranties entered into in the ordinary course of business which are not material to the Corporation, (xi) any joint venture agreement or bound by similar arrangement; (xii) any executory non-competition agreement or similar arrangement; and (xiii) any contract, lease, license commitment, indenture, or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company Corporation is a party that may not be terminated without penalty, premium or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee liability by the obligations of any Person under any insurance contract; or
Corporation on not more than thirty (H30) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “days' prior written notice. The term "Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” " shall not include any contract that will be fully performed or satisfied as agreement, the failure of which to maintain, perform or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any continue in effect (including by reason of the Material Subsidiaries Merger) has not and is in material default under not reasonably expected to adversely affect the Corporation and its assets, properties, businesses or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersfinancial condition.
Appears in 2 contracts
Sources: Merger Agreement (American United Global Inc), Merger Agreement (American United Global Inc)
Contracts and Commitments. All agreements and commitments which the Corporation currently has in effect (i) Except as expressly contemplated by this Agreementcollectively, the Prior Purchase Agreements “CONTRACTS”), to wit: any agreements or as set forth on commitments which require the attached Schedule Kmaking of any charitable contributions; any purchase agreements or purchase commitments that will continue for a period of more than 90 days or involve more than $25,000 per year per contract, neither the Company nor any or are in excess of the Material Subsidiaries is a party to normal requirements of its business or bound at any price substantially in excess of fair market value and its prior purchasing practices; any agreements or commitments with officers, employees, consultants, advisors, distributors or dealers that are not cancelable by it on notice of not longer than 90 days and without liability or any executory contractcollective bargaining agreement; any employment agreement or commitment, leasenon-compete, license intellectual property ownership or confidentiality agreement, or any other agreement or commitment that contains any severance or termination pay, liabilities or obligations; any indebtedness for borrowed money, promissory notes or other debt instruments, or any guarantee of any indebtedness or other obligations of others; any security agreement or other agreement or commitment that creates any Encumbrance on any of its properties or assets; any agreement or commitment requiring the payment of more than $25,000, individually or in the aggregate, to make any capital expenditures or to acquire any property or assets; any agreement with a stockholder of the Corporation or any Relative thereof, except for the Restated Shareholders Agreement and Restated Registration Rights Agreement; any employee welfare or retirement benefit plan as defined in the Employee Retirement Income Security Act of 1974, as amended from time to time (whether written “ERISA”); any agreement with any customer or oral) that involves:
(A) payments by supplier which is material to the Company and/or business of the Corporation; or any Material Subsidiary agreement, commitment or restriction otherwise material to the Corporation’s assets, liabilities or business. The Corporation has performed all of its obligations required to be performed through the date of Closing under each Contract and the Corporation is not in excess breach or default in any respect thereunder nor has any event or circumstance occurred which, with notice or lapse of $3 million during time or both, would constitute any such breach or default, except in any such case for such breaches or defaults which, individually or in the 12 month period ended aggregate, do not have a material adverse effect on the Closing Date;
business, assets, results of operations, financial condition, or, to the best of the Corporation’s knowledge, prospects of the Corporation (B) prohibiting a “MATERIAL ADVERSE EFFECT”). To the best of the Corporation’s knowledge, none of the other parties to any Contract is in breach or materially limiting default in any respect thereunder nor has any event or restricting circumstance occurred which, with notice or lapse of time or both, would constitute any such breach or default, except in any such case for such breaches or defaults which, individually or in the Company aggregate, do not have a Material Adverse Effect. Neither the Corporation nor any officer, director, employee, or agent of the Corporation (or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect acting on behalf of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, has failed to the Knowledge of the Company, each other party thereto perform its obligations in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be any material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, Contract with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company United States government or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, agency or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersdepartment thereof.
Appears in 2 contracts
Sources: Guaranty, Guaranty (Global Energy, Inc.)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Initial Closing Purchase Agreements Agreement or the Second Closing Purchase Agreement or as set forth on the attached Schedule KL, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K L (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Accelerant Holdings), Securities Purchase Agreement (Accelerant Holdings)
Contracts and Commitments. (a) As of the date hereof, Trooper is not party to nor bound by any
(i) Except “material contract” (as expressly contemplated by this Agreement, such term is defined in Item 601(b)(10) of Regulation S-K of the Prior Purchase Agreements SEC) with respect to Trooper or as set forth on the attached Schedule K, neither the Company nor any of its Subsidiaries that was required to be, but has not been, filed with the Material Subsidiaries is a party to SEC with Trooper’s Annual Report on Form 10-K for the year ended December 31, 2013, or bound by any executory contract, lease, license or other agreement Trooper SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(whether written or oralii) that involves:
Contract (A) payments relating to the disposition or acquisition by Trooper or any of its Subsidiaries of a material amount of assets (1) after the Company and/or date of this Agreement other than in the ordinary course of business consistent with past practice or (2) prior to the date hereof, which contains any Material Subsidiary material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $3 million during the 12 month period ended on the Closing Date1,000,000 or (B) pursuant to which Trooper or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Trooper’s Subsidiaries;
(Biii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging right of Trooper to compete in any line of business or competing anywhere in the world to conduct business with any Person or providing for exclusivity in any business linegeographical area, geographic (B) obligating Trooper 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 (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Trooper on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or otherwisesimilar agreement under which Trooper has granted a Person an exclusive geographical area and under which Trooper paid commissions less than $1,000,000 to such Person in 2013, or from whom Trooper received less than $1,000,000 from the sale of product to said Person in 2013;
(Cvi) Indebtedness involving liabilities Contract pursuant to which Trooper or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by Trooper or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Trooper or any Subsidiary of royalties or license fees exceeding $1,000,000 in any twelve (12) month period or (ii) licenses Trooper Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $1,000,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any guaranty by Trooper or any of its Subsidiaries of third-party obligations (under which Trooper or any of its Subsidiaries has continuing obligations as of the date hereof) of $1,000,000 or more, other than any guaranty by Trooper or any of its Subsidiaries’ obligations;
(ix) Contract between Trooper, on the one hand, and any Affiliate of Trooper (other than a Subsidiary of Trooper), on the other hand;
(x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Trooper or its Subsidiaries;
(xi) Contract under which Trooper and Trooper’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $5 million;
(D) other than arising in 1,000,000 during the Ordinary Course of Business, any joint venture, partnership current or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractsubsequent fiscal year; or
(Hxii) any material amendment, modification or supplement in respect of Contract to enter into any of the foregoing.
(iib) All Ranger has been given access to a true and correct copy of all written Trooper Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Trooper Material Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Trooper Material Adverse Effect, (i) Trooper is not in default under any Contract listed, or required to be listed, in Section 4.12(a) of the contracts, agreements, instruments and documents set forth on the attached Schedule K Trooper Disclosure Letter (each, a “Trooper Material Contract” and, collectively, the “Trooper Material Contracts”), and, (ii) are to Trooper’s knowledge, as of the date hereof, the other party to each of the Trooper Material Contracts is not in default thereunder. Each Trooper Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Trooper and, to the Knowledge of the CompanyTrooper’s knowledge, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingthereto. Neither the Company nor any As of the date hereof, no party to any Trooper Material Subsidiaries is in material default under or in material breach of, or in receipt of Contract has given any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge knowledge of Trooper, any notice (whether or not written) of termination or cancellation of any Trooper Material Contract or that it intends to seek to terminate or cancel any Trooper Material Contract (whether as a result of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserstransactions contemplated hereby or otherwise).
Appears in 2 contracts
Sources: Merger Agreement (Wright Medical Group Inc), Merger Agreement (Tornier N.V.)
Contracts and Commitments. (ia) Schedule 4.14(a) of the Extensity Disclosure Statement contains a complete and accurate list of all agreements, understanding and arrangements, whether written, oral or established through common practice, between Extensity or any Extensity Sub (on one hand) and any other Person (on the other) that directly or indirectly beneficially owns, or is controlled by or under common control with any Person that beneficially owns, more than five percent of the outstanding Extensity Common Stock (the "Extensity Related Party Agreements"). True and correct copies of all Extensity Related Party Agreements have been furnished to Geac.
(b) Except as expressly contemplated filed (including by this Agreement, incorporation by reference to earlier-filed documents) as an exhibit to the Prior Purchase Agreements SEC Reports or as set forth identified on Schedule 4.14(b) to the attached Schedule KExtensity Disclosure Statement (collectively the "Extensity Contracts", it being understood that the failure to identify an agreement or other commitment or arrangement on that schedule that is required to be identified on that schedule shall not cause that item not to be an "Extensity Contract"), neither the Company Extensity nor any of the Material Subsidiaries Extensity Sub is a party to or bound by any executory oral or written contract, lease, license obligation or other agreement (whether written or oral) that involvescommitment of any type in any of the following categories:
(Ai) payments by the Company and/or agreements with any Material Subsidiary in excess employees or consultants of $3 million during the 12 month period ended on the Closing DateExtensity or Extensity Sub respecting their employment, consulting, salary, wages, bonuses, incentive compensation, severance or retention pay, or other compensation, except for those employees or consultants whose annual rate of compensation, including potential bonuses and incentive compensation, is less than USD100,000;
(Bii) prohibiting agreements or materially limiting plans under which benefits will be increased or restricting accelerated by the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect occurrence of any of the foregoing.transactions contemplated by this Agreement or under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by such agreements;
(iiiii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company contracts or the respective Material Subsidiary, as applicable, and, commitments currently in force relating to the Knowledge disposition or acquisition of assets other than in the Companyordinary course of business, each other party thereto or relating to an ownership interest in accordance with their respective terms any Person;
(except iv) agreements, contracts or commitments for the purchase or licensing of goods, Software, supplies or equipment: (A) as limited by applicable bankruptcywhich are with sole or single source suppliers or (B) for a cost, insolvencyfor any one such agreement, reorganizationcontract or commitment, moratorium and in excess of USD100,000;
(v) guarantees or other Laws agreements, contracts or commitments under which Extensity or Extensity Sub is absolutely or contingently liable for (A) the performance of general application affecting any other Person (other than Extensity or an Extensity Sub) or (B) the enforcement whole or any part of creditors’ rights generallythe indebtedness or payment obligations of any other Person (other than Extensity or the Extensity Subs);
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Extensity or any Extensity Sub;
(vii) agreements, contracts or commitments which limit or restrict (A) where Extensity or any Extensity Sub may conduct business, (B) as limited by Laws relating to the availability type or lines of specific performance, injunctive relief business (current or other equitable remedies future) in which Extensity or any Extensity Sub may engage or (C) as would not be material to the Company and the Company Subsidiariesany acquisition of assets or stock (tangible or intangible) by Extensity or any Extensity Sub;
(viii) agreements, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include contracts or commitments containing any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered agreement with respect to an Additional Closinga change of control of Extensity or any Extensity Sub;
(ix) agreements, as contracts or commitments for the borrowing or lending of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach ofmoney, or the availability of credit;
(x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency or
(xi) any joint marketing or joint development agreement, or any license or distribution agreement relating to any Extensity product or planned product, other than software licenses granted to customers in receipt the ordinary course of business.
(c) Neither Extensity or any Extensity Sub nor, to Extensity's and the Extensity Subs' knowledge, any other party to any Extensity Contract, has materially breached, violated or defaulted under, or received written claim of such material default notice that it has breached, violated or material breach, defaulted under any Material Extensity Contract. No event has occurred Nor is there any condition respecting Extensity or any Extensity Sub or, to the knowledge of Extensity and the Extensity Subs, any condition respecting any other party to any Extensity Contract, which, in any such case, with the passage of time or the giving of notice, notice or both, would result in could reasonably be expected to cause a material defaultbreach, breach violation or event default under any Extensity Contract.
(d) Each Extensity Contract is a valid, binding and enforceable obligation of noncomplianceExtensity or an Extensity Sub and, to Extensity's and the Extensity Subs' knowledge, of the other party or parties thereto, in each such caseaccordance with its terms, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or except to the Knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other Laws affecting the enforcement of the Company, threatened material disputes with respect to any such Material Contract. True, correct creditors' rights or by general principles of equity.
(e) An accurate and complete copies copy of each Material Extensity Contract have has been made available to the PurchasersGeac.
Appears in 2 contracts
Sources: Merger Agreement (Extensity Inc), Merger Agreement (Extensity Inc)
Contracts and Commitments. (a) Parent has made available to the Company true and correct copies of all of the following Contracts of Parent, including any amendments or waivers pertaining thereto, which are currently in effect as of the date hereof ( the “Material Contracts”):
(i) Except as expressly contemplated Contracts (other than purchase orders entered into in the ordinary course of business) which involve commitments to make capital expenditures or which provide for the purchase of goods or services by this AgreementParent from any one Person under which the undelivered balance of such products or services has a purchase price in excess of Ten Thousand Dollars ($10,000);
(ii) Contracts (other than purchase orders entered into in the ordinary course of business) which provide for the sale of products or services by Parent and under which the undelivered balance of such products or services has a sale price in excess of Ten Thousand Dollars ($10,000);
(iii) Contracts relating to the borrowing of money by Parent, to the Prior Purchase Agreements or as set forth granting by Parent of a Lien on the attached Schedule K, neither the Company nor any of the Material Subsidiaries its assets, or any guaranty by Parent of any obligation or liability in any case involving a liability in excess of Ten Thousand Dollars ($10,000);
(iv) Contracts pursuant to which Parent is a party to lessor or bound a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any executory contract, leaseleases of personal property;
(v) Contracts for the use, license or sublicense of any Proprietary Rights owned or licensed by Parent or otherwise used in Parent’s business (other agreement (whether written than any license of mass-marketed or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Dateotherwise generally available software);
(Bvi) prohibiting any power of attorney (whether revocable or materially limiting or restricting the Company or irrevocable) given to any Material Subsidiary from freely engaging Person by Parent;
(vii) Contracts by Parent not to compete in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic geographical area or otherwisewith respect to which Parent is the beneficiary of any non-compete provision;
(Cviii) Indebtedness involving liabilities Contracts restricting the right of Parent to use or disclose any information in excess its possession or with respect to which Parent is the beneficiary of $5 millionany confidentiality, nondisclosure or non-use provision;
(Dix) other than arising in the Ordinary Course of Businessany partnership, any joint venture, partnership venture or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisearrangements;
(Ex) “most favored nations” provisions;any employment agreements, severance agreements, bonus agreements and non-competition agreements with employees of Parent; and
(Fxi) other than arising in the Ordinary Course of Businessany Contract with any officer, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contractdirector, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company shareholder or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingtheir respective Affiliates.
(b) With respect to the Material Contracts of Parent: (i) Parent has not materially breached or cancelled any Material Contract; (ii) All to Parent’s Knowledge, none of Parent’s Material Contracts have been breached in any respect or canceled by the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms which has not been duly cured or reinstated; (except (Aiii) as limited by applicable bankruptcyto Parent’s Knowledge, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would Parent is not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No ; (iv) to Parent’s Knowledge, no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material default, breach or event default under any Contract or create in any Person the right to accelerate, suspend, terminate, modify, cancel or exercise any other material right under Parent Material Contract; (v) no Person has given notice to Parent of noncompliancerepudiation of any provision of any Material Contract; and (vi) Parent has not received any notice of any, and to Parent’s Knowledge there is no, impending change of any business relationship with any Person with whom Parent has a material business relationship. To Parent’s Knowledge, each Parent Material Contract is valid, binding and in full force and effect and enforceable in accordance with its terms.
(c) Each of Parent’s Material Contracts has been entered into without the commission of any act by or on behalf of Parent, alone or in concert with any other Person, or any consideration having been paid or promised, that, in each such either case, by the Company is or would be in violation of any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersLaw.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Ampio Pharmaceuticals, Inc.)
Contracts and Commitments. (a) Section 3.13 of the Disclosure Schedule sets forth, as of the date hereof, a complete and correct list of every contract, agreement, loan and license ("Contract") that:
(i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) provides for aggregate future payments by the Company and/or or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting Company Subsidiary, or materially limiting or restricting to the Company or any Material Company Subsidiary, of more than $500,000 and has an unexpired term exceeding one (1) year and may not be canceled upon sixty (60) days' notice without any liability, penalty or premium (excluding purchase and sale orders entered into or incurred in the ordinary course of business); 12
(ii) was entered into by the Company or a Company Subsidiary with a stockholder, Affiliate, officer, director or significant employee of the Company or any Company Subsidiary, or with any Affiliate of any of the foregoing;
(iii) is a collective bargaining or similar agreement;
(iv) involves an agreement with any bank, finance company or similar organization for Indebtedness of the Company or any Company Subsidiary;
(v) restricts the Company or any Company Subsidiary from freely engaging in any business or competing activity anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseworld;
(Cvi) Indebtedness involving liabilities in excess of is an individual consulting agreement or similar contract providing for aggregate annual payments above $5 million100,000 per year;
(Dvii) is a power of attorney (other than arising a power of attorney given in the Ordinary Course ordinary course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisebusiness with respect to routine Tax matters);
(Eviii) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration involves any joint venture or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to partnership relationship between the Company or any Material Company Subsidiary and any other Person;
(ix) is the principal contract (and not an ancillary or other related agreement) relating to any capital maintenance contract material acquisition, divestiture, merger or similar agreement pursuant transaction that has been executed but has not been consummated or that has been consummated, but contains representations, warranties, covenants, indemnities or other obligations that are still in effect; or
(x) is a material License (other than any License to commercially available, off-the-shelf, shrink-wrap, click-wrap or similar Computer Software) by which the Company or any Material Company Subsidiary has agreed to contribute capital is granted any rights in, or surplus to grants any Person or guarantee rights to, the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingCompany Intellectual Property.
(iii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, There is not and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited there has not been claimed or alleged by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered Person with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any Contract listed in Section 3.13 of the Material Subsidiaries is in material default under or in material breach of, or in receipt of Disclosure Schedule any written claim of such material existing default or material breach, under any Material Contract. No event has occurred whichthat, with the passage notice or lapse of time or the giving of notice, or both, would result in constitute a material default, breach default or event of noncompliance, in each such case, by default on the part of the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstandingCompany Subsidiary or, pending, or to the Knowledge of the Company, threatened material disputes with respect on the part of any other party thereto, except such defaults, events of default and other events that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, and (ii) no consent, approval, authorization or waiver from, or notice to, any Governmental Entity or other Person is required in order to maintain in full force and effect any of the Contracts listed in Section 3.13 of the Disclosure Schedule, other than (A) such consents and waivers that have been obtained and are unconditional and in full force and effect and such notices that have been duly given and (B) such consents, approvals, authorizations, waivers or notices the failure of which to have or give, individually or in the aggregate, have not had, and would not reasonably 13 be expected to have, a Company Material ContractAdverse Effect. True, Complete and correct and complete copies of each Material Contract all Contracts listed in Section 3.13 of the Disclosure Schedule have been made available to Purchaser. This Section 3.13(b) does not relate to leased real property or interests in leased real property, such items being the Purchaserssubject of Section 3.12 hereof.
Appears in 1 contract
Contracts and Commitments. (a) Section 2.09(a) of the Company Disclosure Schedules sets forth a complete and accurate list of each of the following Contracts to which the Company is a party or otherwise bound (any Contract of a nature described below to which the Company is a party or otherwise bound, being referred to herein as a “Material Contract” and, collectively, as the “Material Contracts”):
(i) Except any Contract or commitment that requires, or would reasonably be expected to result in, payments by the Company or its Subsidiaries, except for any such Contract or commitment that is cancelable without penalty, further payment or material liability upon notice of 30 calendar days or less;
(ii) any Contract relating to the borrowing of money or extension of credit or to mortgaging, pledging or otherwise placing a Lien on any asset of the Company; Table of Contents
(iii) any guaranty of any obligation for borrowed money or Contract containing any other guaranty or indemnification obligation;
(iv) any Contract (other than any Contract for Standard Software and nondisclosure and confidentiality agreements entered into in the ordinary course of business consistent with past practice) under which (A) the Company acquired ownership of any Owned Intellectual Property, (B) the Company has granted to any Person a license or other rights to use any Owned Intellectual Property or Licensed Intellectual Property, (C) the Company has been granted by any Person a license or other rights to use any Licensed Intellectual Property or (D) the Company is obligated to pay royalties to any Person for the right to use any Intellectual Property that is material to the business of the Company, as expressly currently conducted or as contemplated to be conducted; or
(v) any Contract limiting in any respect the right of the Company to engage or participate, or compete with any Person, or solicit any Person, in any line of business, market or geographic area, or to make use of or to develop any Intellectual Property, or any Contract granting most favored nation or preferred pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal, rights of first negotiation or similar rights or terms to any person, or any Contract otherwise limiting the right of the Company to sell, develop, distribute or manufacture any product or to purchase or otherwise obtain any product, materials, components, parts or services;
(vi) any Contract that requires a consent to, or otherwise contains a provision relating to a “change of control,” that would prohibit or delay the consummation of the transactions contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(Bvii) prohibiting any Contract or materially limiting commitment relating to the disposition or restricting the Company acquisition of assets or any Material Subsidiary from freely engaging interest in any business or competing anywhere in enterprise outside of the world or providing for exclusivity in any ordinary course of business line, geographic area or otherwiseconsistent with past practice;
(Cviii) Indebtedness involving liabilities in excess of $5 millionany collective bargaining Contract;
(Dix) any Employment Agreement or other than arising in the Ordinary Course of BusinessContract with an individual consultant, contractor, or salesperson, any agreement, Contract or commitment to grant any bonus (in cash or otherwise) to any Employee, or any contractor, consulting or sales agreement, Contract, or commitment with a firm or other organization;
(x) any Contract that contains any redundancy, severance or termination pay or creates post-employment Liabilities;
(xi) any partnership, collaboration, dealer, distribution, supply, procurement, agency, joint marketing, joint venture, partnership strategic alliance, affiliate, services, or other cooperative arrangement development Contract or similar arrangement involving Contract or any Contract which is or contains a sharing power of profits or otherwiseattorney given by the Company;
(Exii) any nondisclosure, confidentiality, material transfer, “most favored nationsstandstill” provisionsor similar Contract, other than those nondisclosure and confidentiality agreements entered into in the ordinary course of business consistent with past practice;
(Fxiii) any sales representative, manufacturing, distribution, agency or any other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which granting any Person has agreed rights to contribute capital manufacture, market, sell or surplus to distribute any product of the Company or in any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractterritory; or
(Hxiv) any material amendment, modification settlement agreement or supplement in respect covenant not to ▇▇▇. Table of any of the foregoing.Contents
(iib) All The Company has made available to Parent a true and correct copy of the contracts, agreements, instruments all Material Contracts. Each Material Contract is valid and documents set forth binding on the attached Schedule K (each, Company that is a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicableparty thereto, and, to the Knowledge knowledge of the Company, on each other Person that is a party thereto to such Material Contract and each Material Contract is in accordance with their respective terms (except (A) as limited by applicable bankruptcyfull force and effect, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating subject to the availability of specific performanceEnforceability Exceptions.
(c) The Company has not violated or breached, injunctive relief in any material respect, or other equitable remedies or (C) as would not be committed any material default under, any Material Contract and, to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any knowledge of the Material Subsidiaries is Company, no other Person has violated or breached, in any material respect, or committed any material default under or in material breach ofunder, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, or condition exists that (with or without the giving of notice or with the passage lapse of time or the giving of noticeboth) will, or both, would reasonably be expected to: (i) result in a material default, breach violation or event of noncompliancebreach, in each such caseany material respect, by the Company or of any of the provisions of any Material Subsidiaries Contract; (ii) give any Person the right to declare a material breach or material default or exercise any remedy under any such Material Contract; (iii) give any Person the right to accelerate the maturity or performance of any Material Contract; or (iv) give any Person the right to cancel, terminate or modify any Material Contract. There are no outstanding, pending, or to the Knowledge knowledge of the Company, threatened material disputes or disagreements with respect to any such Material Contract. TrueThe Company has not received any notice from any Person regarding any actual or possible material violation or breach of, correct and complete copies of each or default under, any Material Contract have been made available to the PurchasersContract.
Appears in 1 contract
Sources: Merger Agreement (Capnia, Inc.)
Contracts and Commitments. (a) Schedule 2.11(a) contains a true and complete list of (i) all license agreements to which any of the Acquired Companies is a party, together with all material amendments thereto; and (ii) all other material contracts and documents of any of the Acquired Companies, together with all material amendments thereto.
(b) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached in Schedule K2.11(b), neither the Company nor any none of the Material Subsidiaries Acquired Companies is a party to any: (i) agreement or bound by indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any executory contractof the assets of any of the Acquired Companies other than as disclosed in Schedule 2.8(a); (ii) guaranty of any obligation for borrowed money or otherwise, lease, license or other agreement than endorsements made for collection; (whether written or oraliii) that involves:
(A) payments by contract which prohibits any of the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary Acquired Companies from freely engaging in any business or competing anywhere in the world world; (iv) contract, agreement or providing understanding with any of its officers, directors or employees (other than for exclusivity in employment on customary terms) or any business line, geographic area Participating Shareholder or otherwise;
any Responsible Person; or (C) Indebtedness involving liabilities in excess of $5 million;
(Dv) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, agreement material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect business of any of the foregoingAcquired Companies or other agreement not entered into in the ordinary course of business.
(iic) All Buyer has been supplied with a true and correct copy of all agreements which are referred to in either Schedule 2.11(a) or Schedule 2.11(b), together with all material amendments, waivers or other changes thereto. None of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Acquired Companies is and, to the Knowledge best knowledge of each of the CompanyResponsible Persons, each no other party thereto to any material agreement referred to in accordance with their respective terms (except (Aeither Schedule 2.11(a) as limited by applicable bankruptcyor Schedule 2.11(b) is, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered in default with respect to an Additional Closingany material term or condition thereof, as of or prior to such Additional Closing. Neither the Company nor has any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with which through the passage of time or the giving of notice, or both, would result in constitute a material default, breach default thereunder or event would cause the acceleration of noncompliance, in each such case, by the Company or any obligation of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersparty thereto.
Appears in 1 contract
Sources: Merger Agreement (Quiksilver Inc)
Contracts and Commitments. (a) Except for leases required to be disclosed pursuant to Sections 4.12 and 4.13 hereof, Plans required to be disclosed pursuant to Section 4.17(a) hereof and insurance policies required to be disclosed by Section 4.20 hereof, Schedule 4.21(a) attached hereto contains a list of each contract, subcontract, agreement, commitment, option, note, bond, mortgage, indenture, deed of trust, guarantee, franchise or license which: (i) Except (A) requires payments in excess of Five Hundred Thousand Dollars ($500,000.00); (B) contains the terms and conditions: (I) upon which any person is employed or engaged as expressly an officer, general manager, or consultant; or (II) upon which any severance or other termination payments are payable; (C) provides preferential rights to purchase any material quantity of any assets; (D) limits the freedom of any party to engage in any business in any geographic area; (E) contains any "change in control" provision which would be breached by the consummation of the transactions contemplated by this Agreement, ; or (F) contains the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor terms of any guaranty of the Material Subsidiaries payment or performance of any liabilities or obligations the cost of the payment or performance of which liabilities or obligations exceeds, in the aggregate, an amount equal to Five Hundred Thousand Dollars ($500,000); and (ii) (A) Seller is a party to and relates primarily to any Automotive Filter Company (hereinafter individually referred to as a "Seller Contract" and collectively as the "Seller Contracts"); or (B) any Automotive Filter Company is a party to or bound by any executory contract, lease, license or other agreement the beneficiary of (whether written or oral) that involves:
(A) payments by hereinafter individually referred to as a "Automotive Filter Company Contract" and collectively as the "Automotive Filter Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing").
(iib) All Prior to the date hereof Seller has delivered or otherwise made available to Buyer, true and complete copies of the contracts, agreements, instruments Seller Contracts and documents the Automotive Filter Company Contracts including all amendments thereof and modifications thereto.
(c) Except as set forth on in Schedule 4.21(c) attached hereto, each of the attached Schedule K (each, a “Material Contract”) Seller Contracts and the Automotive Filter Company Contracts are valid, binding and in full force and effect and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective its terms except to the extent that: (except (Ai) as limited by applicable such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors rights; and (ii) the remedy of specific performance and injunctive and other Laws forms of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating equitable relief may be subject to equitable defenses and to the availability discretion of specific performancethe court before which any proceeding therefore may be brought; (d) Except as set forth in Schedule 4.21(d) attached hereto, injunctive relief Seller is not in material default (and no event or other equitable remedies condition exists which, with notice, lapse of time or (Cboth would constitute a material default) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as any of or prior to such Additional Closing. Neither the Company nor its obligations under any of the Material Subsidiaries Seller Contracts, and, to the knowledge of Seller, there is no basis for any claim that any other parties to any of the Seller Contracts is in material default with respect to its obligations under or such Seller Contracts; and (e) Except as set forth in Schedule 4.21(e) attached hereto, none of the Automotive Filter Companies is in material breach of, default (and no event or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred condition exists which, with the passage notice, lapse of time or the giving of notice, or both, both would result in constitute a material default, breach or event ) with respect to the obligations of noncompliance, in each such case, by the any Automotive Filter Company or under any of the Material Subsidiaries under any such Material Contract. There are no outstandingAutomotive Filter Company Contracts and, pending, or to the Knowledge knowledge of Seller, there is no basis for any claim that any other party to any of the Company, threatened Automotive Filter Company Contracts is in material disputes default with respect to any its obligations under such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersAutomotive Filter Company Contracts.
Appears in 1 contract
Contracts and Commitments. (i) Except for Contracts listed in Schedule 5.6 and except for Contracts made in the Ordinary Course of Business since the date hereof or as expressly contemplated by this AgreementAgreement and the transactions contemplated hereby, none of the Prior Purchase Agreements Subject Companies is a party to, or bound by, any Contract of any kind to be performed after the Closing Date (i) pursuant to which it is obligated to expend more than $50,000 in any twelve- month period and that is not subject to cancellation on not more than thirty (30) days' notice by such Subject Company, as set forth on the attached case may be, without penalty or increased cost except for agreements to charter transportation services made in the Ordinary Course of Business or (ii) with any Personnel or other Affiliates of such Subject Company. To the best knowledge of the Sellers, there is no Default by any party to any such Contract, which Default would have a Material Adverse Effect. Schedule K5.6 lists the following Contracts to which any Subject Company is a party, neither or by which any of such Subject Company's Assets are bound:
(a) any written Contract (or group of related written Contracts) creating a partnership or joint venture with any other Person;
(b) any promissory notes, loans, agreements in respect of indebtedness for borrowed money, indentures in respect of indebtedness for borrowed money, evidences of indebtedness, letters of credit in which the Company nor Target or any of its Subsidiaries is the account party or guarantees of any of the Material Subsidiaries is a party to items described above, individually or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by in the Company and/or any Material Subsidiary aggregate in excess of $3 million during 25,000, whether any Subject Company shall be the 12 month period ended on borrower, lender or guarantor thereunder or whereby any Assets are pledged (excluding credit provided by the Closing DateSubject Company in the ordinary course of business to purchasers of its products or services);
(Bc) prohibiting any written Contracts to employ or materially limiting terminate key Personnel (as defined below) and other material Contracts with present or restricting the Company former officers, directors or shareholders or other personnel of any Material Subsidiary from freely engaging in Subject Company.
(d) any business written Contract (or competing anywhere in the world group of related written Contracts) concerning confidentiality or providing for exclusivity in any business line, geographic area or otherwisenon-competition arrangements;
(Ce) Indebtedness any written Contract (or group of related written Contracts) between any Subject Company and (i) any Russian Venture or (ii) Smit-Matrix;
(f) any written Contract with any of its directors, officers, shareholders or employees, any Affiliate thereof or any member of any such person's immediate family (x) providing for the furnishing of material services by, (y) providing for the rental of material real or personal property from, or (z) otherwise requiring material payments to (other than for services as officers, directors or employees of any Subject Company), any such Person or any corporation, partnership, trust or other entity in which any such Person has a substantial interest as a shareholder, officer, director, trustee or partner;
(g) except for Contracts with attorneys and accountants for services to be provided in connection with the Acquisition, any written distribution, franchise, license, technical assistance, sales, commission, sales agent or advertising Contracts related to the Assets or the Business of any Subject Company involving liabilities receipts in excess of $5 million500,000 or expenditures in excess of $50,000 that are not cancelable (without penalty or other termination fees) by the Subject Company party thereto on not more than thirty (30) days' notice;
(Dh) other than arising any options with respect to any property, real or personal, with a book value in excess of $50,000 whether a Subject Company is the grantor or grantee thereunder;
(i) except for agreements to charter or purchase transportation services made in the Ordinary Course of Business, any joint venture, partnership Contracts involving expenditures in excess of $50,000 that are not cancelable (without penalty or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisetermination fees) by the Subject Company party thereto on not more than thirty (30) days' notice;
(Ej) “most favored nations” provisionsany written Contract with the United States, any state or local government or any agency or department thereof;
(Fk) except for this Agreement, any Contract that (A) limits or contains restrictions on the ability of any Subject Company to declare or pay dividends on, to make any other distributions in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur indebtedness, to incur or suffer to exist any lien, to purchase or sell all or a material portion of Assets, to change the lines of business in which it participates or engages or to engage in any business combination or (B) requires any Subject Company to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(l) any other written Contract (or group of related written Contracts) involving aggregate payments of more than arising $500,000 to any Subject Company or not entered into in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(Hm) any material amendmentwritten proposal to enter into any contract, modification agreement or supplement in other arrangement with respect of to any of the foregoing.
matters referred to in the foregoing clauses (iia) All through (l). The Sellers have delivered to Buyer true, correct and complete, in all material respects, copies of each written Contract listed in Schedule 5.6 to which a Subject Company is a party, including all amendments and supplements thereto, and have included as part of Schedule 5.6 a brief summary of any such oral contracts, agreements or other arrangements and any written proposals to enter into any such Contracts. Schedule 5.6 sets forth all consents required for the beneficial assignment by any Subject Company to Buyer of the contractsrights, agreementsbenefits and claims under the Contracts as a result of the transactions contemplated hereby. To the knowledge of the Sellers, instruments and documents set forth on all of the attached Schedule K (each, a “Material Contract”) Contracts to which any Subject Company is party or by which it or any of the Assets is bound or affected are valid, binding and enforceable against the applicable Subject Company or the respective Material Subsidiary, as applicable, and, to the Knowledge knowledge of the CompanySellers, against each of the other party parties thereto in accordance with their respective terms (terms, except (A) as such enforceability may be limited by applicable (i) bankruptcy, insolvencymoratorium, reorganization, moratorium reorganization and other Laws similar laws affecting creditor's rights generally and (ii) the general principles of general application affecting the enforcement equity, regardless of creditors’ rights generallywhether asserted in a proceeding in equity or at law. Each Subject Company which is a party to such Contracts and, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any knowledge of the Material Subsidiaries Sellers, each other person which is a party thereto has complied in all material respects with the provisions thereof, no party is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are Default thereunder and no outstanding, pendingwritten, or to the Knowledge knowledge of the Sellers, other notice of any claim of Default has been given to such Subject Company, threatened material disputes with respect except for Defaults which would not have a Material Adverse Effect. To the knowledge of the Sellers, none of the products and services called for by any unfinished Contract involving payments to any Subject Company in excess of $100,000 cannot be supplied in accordance with the terms of such Material Contract. True, correct and complete copies of each Material Contract have been made available including time specifications and, to the Purchasersknowledge of the Sellers, no outstanding bid, proposal or unfinished Contract will upon performance by such Subject Company result in a loss to such Subject Company.
Appears in 1 contract
Contracts and Commitments. (i) Except for this Agreement and the Assigned Contracts, as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries date hereof, Seller is not a party to or bound by any executory contractContract, lease, license or other agreement than those that can be terminated by the Seller without penalty upon not more than ninety (whether written or oral90) that involvesdays’ notice:
(a) that would be required to be filed by the Seller as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(b) pursuant to which the Seller has any material continuing “earn-out” or other contingent payment obligations arising in connection with the acquisition or disposition by the Seller of any business;
(c) that (A) payments limits in any material respect either the type of business in which the Seller (or in which the Buyer after the Closing Date) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Seller or, after the Closing Date, the Buyer or (C) grants “most favored nation” status that, following the purchase of the Purchased Assets, would apply to the Buyer;
(d) that (A) is an indenture, loan or credit Contract, loan note, mortgage Contract, letter of credit or other Contract representing, or any guarantee of, indebtedness of the Seller or (B) is a guarantee by the Company and/or Seller of the indebtedness of any Material Subsidiary Person other than the Seller;
(e) that grants with respect to any Purchased Asset (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any Person (other than the Seller);
(f) that was entered into to settle any material litigation and which imposes material ongoing obligations on the Seller;
(g) pursuant to which (A) the Seller grants to any third party any license, release, covenant not to sue or similar right with respect to material Intellectual Property or (B) the Seller receives a license, release, covenant not to sue or similar right with respect to any material Intellectual Property owned by a third party (other than generally commercially available software in object code form);
(h) that relates to the acquisition or disposition of any business or assets or the sale or supply of any services pursuant to which the Seller has any liability in excess of $3 million during 50,000 individually or $100,000 in the 12 month period ended on the Closing Dateaggregate;
(Bi) prohibiting that requires or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere is expected to require in the world next year aggregate annual payments by or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities to the Seller in excess of $5 million100,000;
(Dj) other than arising in to which the Ordinary Course Seller or any of Businessits Subsidiaries is a party, or by which any joint ventureof them are bound, partnership the ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other cooperative arrangement or similar arrangement involving subcontractor who is a sharing of profits or otherwiseparty to any such contract);
(Ek) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company Seller or any Material Subsidiary has agreed of its Subsidiaries acquired, holds or disposed of any interest (whether in fee, a leasehold, a concessions or otherwise) in real property, or any rights to contribute capital explore, mine or surplus otherwise extract minerals, ore, metals or other substances.
(l) any revocable or irrevocable power of attorney relating to the Purchased Assets or the Business granted to any Person person, firm or guarantee the obligations of corporation for any Person under any insurance contractpurpose whatsoever; or
(Hm) any material amendment, modification Contract or supplement in respect option relating to the acquisition or sale of any of the foregoingPurchased Assets.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Standard Dental Labs Inc.)
Contracts and Commitments. Schedule 3.12 hereto contains a complete and accurate list of all material Contracts of the Seller (the “Seller Agreements”) concerning the following matters:
(i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements employment or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations engagement of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.Anticipated Transferred Employee;
(ii) All any covenant not to compete or confidentiality agreement affecting an Anticipated Transferred Employee;
(iii) any arrangement limiting the freedom of Seller to use the Transferred Intellectual Property in any manner;
(iv) any arrangement that could reasonably be anticipated to have a Material Adverse Effect;
(v) any agreement restricting the Seller’s transfer or sale of Transferred Intellectual Property or the other Specified Assets;
(vi) any royalty agreement which requires a payment by Seller with respect to the Owned IP;
(vii) any contract for the sale of any Specified Assets or the business of Seller; and
(viii) any license, as licensee, of the contractsLicensed IP or Other IP. The Seller Agreements are valid and, agreementsto Seller’s Knowledge, instruments enforceable in accordance with their terms, and documents set forth there is not under any of such Seller Agreements (i) any existing or claimed default by any Seller or, to Seller’s Knowledge, any event which, with the notice or lapse in time, or both, would constitute a default by any Seller or (ii) to the Knowledge of Seller, any existing or claimed default by any other party or event which with notice or lapse of time, or both, would constitute a material default by any such party. Except as indicated on Schedule 3.12, the attached Schedule K (eachcontinuation, validity and effectiveness of the Seller Agreements will not be affected by the Acquisition, and the Acquisition will not result in a “Material Contract”) are validbreach of or default under, binding and enforceable against or require the Company or Consent of any other party to, any of the respective Material Subsidiary, as applicable, andSeller Agreements. There is no actual or, to the Knowledge of the CompanySeller, each other party thereto in accordance with their respective terms (except (A) as limited by applicable threatened termination, cancellation or limitation of any Seller Agreements. To Seller’s Knowledge, there is no pending or threatened bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief insolvency or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes similar proceeding with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available other party to the PurchasersSeller Agreements.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 2.14 attached hereto contains a true, complete and correct list of the following contracts, arrangements, commitments and agreements, whether written or oral (collectively, “Contracts”) (other than a Contract which is an Excluded Asset), (x) by which any of the Assets are bound or affected, (y) to which Seller is a party or by which it is bound solely in connection with the Business or any of the Assets and (z) to which BioSepra, S.A. is a party or by which any of their assets or properties are bound or affected:
(i) all loan agreements, indentures, mortgages and guaranties;
(ii) all Contracts (including a general description of purchase orders) which involve or could potentially involve payments or receipts of more than twenty thousand U.S. dollars (US$20,000) under which full performance (including payment) has not been rendered by all parties thereto;
(iii) all agency, distributor, sales representative and similar agreements, other than those substantially on Seller’s standard form;
(iv) all Contracts with any stockholder, director, officer or Affiliate of the Seller and/or BioSepra, S.A. and all employment, management, consulting, profit sharing, stock option, stock purchase or stock appreciation Contracts or other equity-incentive, deferred compensation, retirement, change in control or severance Contracts with employees of BioSepra, S.A. or the Seller who devote a material portion of their time to the Business;
(v) all leases, whether operating, capital or otherwise, which involve payments of more than twenty thousand dollars ($20,000) per year;
(vi) all licenses to or for any Business Intellectual Property (provided that Seller may describe generally but not be required to list specifically all end user license agreements to readily available software and limited rights to use Business Intellectual Property in connection with material transfer agreements and other non-material agreements entered into in the ordinary course of business);
(vii) Contracts containing any covenant not to compete obligating Seller or BioSepra, S.A. with respect to the Business; or
(viii) any other material Contract not included in Subparagraphs (i) – (vii) above, including joint venture or partnership Contracts.
(b) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the Schedule 2.14 attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involveshereto:
(Ai) payments by the Company and/or any Material Subsidiary each Contract is in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving full force and effect and is a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar valid and binding agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.Seller or BioSepra, S.A., as the case may be, enforceable against the Seller or BioSepra, S.A., as the case may be, in accordance with its terms;
(ii) All neither the Seller nor BioSepra, S.A. is in breach of the contracts, agreements, instruments or default under any Contract and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No Seller no event has occurred which, which with the passage of time or the giving of noticenotice or both would constitute a default, or both, would result in a material loss of rights or an acceleration of an obligation or result in the creation of any Encumbrance thereunder or pursuant thereto; and
(iii) to the knowledge of the Seller, there is no existing breach or default by any other party to any Contract, no event has occurred which with the passage of time or giving of notice or both would constitute a default, breach result in a loss of rights or event an acceleration of noncompliancean obligation or result in the creation of any Encumbrance thereunder or pursuant thereto;
(c) Except as set forth on Schedule 2.3 or Schedule 2.14, the continuation, validity, enforceability and effectiveness of each Contract will not be affected by and no consent, approval or permit of or notice to any person is required under such Contracts in each such case, by connection with the Company or any consummation of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, transactions contemplated by this Agreement or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. Related Agreements.
(d) True, correct and complete copies of each Material Contract all written Contracts (including all amendments, exhibits, schedules, waivers and elections applicable thereto) and true, correct and complete summaries of all oral Contracts have previously been made available by the Seller to the PurchasersBuyer.
(e) No party to any Contract has repudiated any provision thereof and communicated such repudiation to the Seller, and there are no negotiations pending or in progress to revise any material term of any Contract.
(f) Except for Contracts set forth on Schedule 2.14, (i) no Contracts which are purchase contracts continue for a period of more than twelve (12) months or are for quantities or amounts in excess of the normal, ordinary, usual and current requirements of the Business and (ii) no Contracts obligate the Seller or BioSepra, S.A. to sell products or to render services pursuant to terms and conditions that the Seller or BioSepra, S.A. cannot reasonably expect to timely satisfy or fulfill in all material respects.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ciphergen Biosystems Inc)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth The agreements listed on the attached Disclosure Schedule K, neither the Company nor any of the Material Subsidiaries constitute all written and oral agreements to which Seller is a party that are material to or bound by any executory contractthe Business as currently conducted including, lease, license or other agreement (whether written or oral) that involves:without limitation,
(Aa) payments by any agreements relating to the Company and/or construction or purchase of capital improvements, or the purchase of any Material Subsidiary in excess materials, supplies, or equipment involving the expenditure of more than $3 million during the 12 month period ended on the Closing Date50,000;
(Bb) prohibiting any employment, consulting, management, or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwisenoncompetition agreement not terminable at will by Seller without liability on less than 30 days notice;
(Cc) Indebtedness involving liabilities in excess of $5 millionany bonus, pension, retirement, profit sharing or other plan or agreement providing for employee benefits other than group health insurance, sick pay and vacation pay plans for employees generally;
(Dd) other than arising in the Ordinary Course any license of Businessany patent, any joint venturecopyright, partnership trade secret or other cooperative arrangement proprietary right or any other license or franchise, or similar arrangement involving a sharing of profits or otherwiseagreement;
(Ee) “most favored nations” provisionsany contract with any labor union or association of employees;
(Ff) other than arising any indemnification agreement relating to infringement of proprietary rights;
(g) any agreement, contract, or commitment that is reasonably expected by Seller to be performed at or result in a loss, or which has or would be reasonably likely to have a material adverse effect upon the Ordinary Course Business;
(h) any lease of Businesspersonal property material to the operations of Seller;
(i) any agreement with any broker, material third-party administration finder, investment banker or underwriter;
(j) any note, debenture, bond, equipment trust agreement, letter of credit agreement, loan agreement or other insurance policy administration contract or commitment for the borrowing or lending of money relating to the Insurance Contracts;
(G) Business or agreement or arrangement for a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company line of credit or any Material Subsidiary guaranties, in any manner, whether directly or indirectly, or any capital maintenance contract indebtedness, dividend or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations other obligation of any Person under any insurance contract; or
(H) any material amendment, modification other person or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws entity relating to the availability Business (other than endorsements in the ordinary course of specific performancebusiness of negotiable instruments for deposit or collection); and
(k) any agreements with sales representatives and distributors; and including each amendment, injunctive relief modification, renewal or extension or other equitable remedies material ancillary document pertaining thereto (the "Seller Agreements"). Seller has previously delivered or (C) as would not be material made available to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, Buyer correct and complete copies of each Material Contract have been made available of the Seller Agreements that are in writing.
(ii) To Seller's knowledge, Seller has not received written notice of cancellation or termination under any option or right reserved to the Purchasersother party to the Seller Agreements or any written notice of default under such agreement. Except as otherwise disclosed on the Disclosure Schedule, Seller is not, nor to the knowledge of the persons specified in Schedule 3.1.8, is any other party, in breach or default of any Seller Agreement, which default would reasonably be likely to cause a material adverse effect on the Business and, to the knowledge of the persons specified in Schedule 3.1.8, no event has occurred that, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under such Seller Agreement, the loss of which would reasonably be anticipated to cause a material adverse effect on the Business. Section 3.1.27 notwithstanding, a material adverse affect attributable to a breach or default of a Seller Agreement by a person other than Seller shall mean a breach, or series of related breaches, which would reasonably to be anticipated to result in damages exceeding fifty thousand dollars. Except as separately identified in the Disclosure Schedule, no approval or consent of any person is needed in order that the Seller Agreements continue in full force and effect following the assignment of such agreements to PRG. Furthermore, to the knowledge of the persons specified in Schedule 3.1.8, no Seller Agreement, in the reasonable opinion of Seller, contains any contractual requirement with which there is a reasonable likelihood Seller or any other party thereto will be unable to comply. PRG acknowledges that Seller has many small customers, such as non-profit entities and that Seller is making this representation without having made any inquiry of such entities regarding their financial condition.
Appears in 1 contract
Sources: Acquisition Agreement (Production Resource Group LLC)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any Section 3.9(a) of the Material Subsidiaries Sellers’ Disclosure Schedule, the Division is not a party to or bound by any executory contractwritten or oral:
(i) management agreement, leaseconsulting agreement, license employee leasing agreement or contract for the employment or services of any officer, individual employee, independent contractor, consultant or other Person on a full time, part time, consulting or other basis, or any other arrangement or understanding (A) providing compensation, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (C) otherwise restricting its ability to terminate the employment or services of any employee, independent contractor, or consultant at any time for any lawful reason or for no reason without penalty or liability;
(ii) agreement or indenture relating to Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any asset or group of assets of the Division or any letter of credit arrangements, or any guarantee therefor;
(iii) lease or agreement under which the Division is a (A) lessee of or holds or operates any personal property, owned by any other party or (B) lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Division (including all Equipment Contracts in effect as of the Closing Date);
(iv) agreements relating to the ownership of, investments in or loans and advances to any Person, including investments in joint ventures and minority equity investments and loans with respect thereto;
(v) inbound or outbound license, royalty, or other agreement with respect to any Intellectual Property (whether written except for license agreements for non-customized commercially available off the shelf software) or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially other agreements affecting, limiting or restricting the Company Division’s ability to use, enforce or disclose any Material Subsidiary Division Intellectual Property, other than non-disclosure or confidentiality agreements entered into by the Division in the ordinary course of business;
(vi) contract or agreement prohibiting the Division from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseworld;
(Cvii) Indebtedness involving liabilities in excess agreement or commitment for the purchase by the Division of $5 millionmachinery, equipment or other personal property or refurbishment of the same;
(Dviii) agreement that provides any customer of the Division with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other than arising in customers of the Ordinary Course of BusinessDivision, including any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) agreement containing “most favored nationsnation” provisions;
(Fix) other than arising in the Ordinary Course of Business, material third-party administration agreement with any Material Customer or other insurance policy administration relating to the Insurance ContractsMaterial Supplier;
(Gx) a capital maintenance agreement with any Government Entity;
(xi) agreement involving the settlement of any Action with respect to which (i) any amounts remain unpaid or (ii) conditions precedent to the settlement thereof have not been satisfied;
(xii) agreement for the disposition of any assets of the Division outside the ordinary course of business consistent with past practices or any agreement for the acquisition of the assets or business of any other Person;
(xiii) indemnity agreement with any supplier to or customer of the Division under which the Division is obligated to indemnify such party against product warranty or infringement or similar claims;
(xiv) warranty contract with respect to services rendered or products sold, leased or licensed by the Division which contains terms and conditions that differ in any material respect from standard warranty terms and conditions provided to customers of the Division; and
(xv) any other contract, keepwell agreement or similar agreement pursuant to which any Person has agreed to contribute capital other arrangement or surplus group of related contracts, agreements or other arrangements with the same party or group of affiliated parties that are otherwise material to the Company Division, whether or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which not entered into in the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations ordinary course of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingbusiness.
(iib) All Except as described on Section 3.9(b) of the Sellers’ Disclosure Schedule, all of the contracts, agreements, agreements and instruments and documents set forth or required to be set forth on Section 3.9(a) of the attached Sellers’ Disclosure Schedule K (each, a the “Material ContractContracts”) are valid, binding binding, fully executed and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of applicable Seller and as to the Companyother parties thereto, each other party thereto in accordance with their respective terms and will continue as such following the consummation of the transactions contemplated hereby, in each case subject to (except (Ai) as limited by the effect of any applicable bankruptcy, reorganization, insolvency, reorganization, moratorium and other Laws of general application or similar laws affecting the enforcement of creditors’ rights generally, ; and (Bii) as limited by Laws relating to enforceability, to the availability effect of specific performance, injunctive relief general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or other equitable remedies or (C) as would at law). Sellers have performed all obligations required to be performed by them and are not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or of nor in receipt of any written claim of such material default or material breach, breach under any Material Contract. No , and no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material default, breach or event of noncompliance, in each such case, noncompliance by Sellers under any Material Contract and there has been no breach or cancellation or anticipated breach or cancellation by the Company or other parties to any of the Material Subsidiaries under Contract nor do any such other parties intend to renegotiate any such Material Contract. There are no outstanding, pending, or to the Knowledge Contract as a result of the Company, threatened material disputes with respect consummation of the transactions contemplated herein. Sellers have made available to any such Material Contract. True, correct Purchaser true and complete copies of each all Material Contract have been made available to the PurchasersContracts, including all amendments thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Industrial Services of America Inc)
Contracts and Commitments. (a) Except for leases required to be disclosed pursuant to Sections 4.12 and 4.13 hereof, Plans required to be disclosed pursuant to Section 4.17(a) hereof, insurance policies required to be disclosed by Section 4.20 hereof and the Other Vapor Purchase Agreement, Schedule 4.21(a) attached hereto contains a list of each written contract, subcontract, agreement, commitment, option, note, bond, mortgage, indenture, deed of trust, guarantee, franchise or license which: (i) Except (A) requires payments in excess of One Hundred Thousand Dollars ($100,000.00) per year; (B) contains the terms and conditions: (I) upon which any person is employed as expressly an officer, general manager, or consultant; or (II) upon which any severance or other termination payments are payable; (C) provides preferential rights to purchase any material quantity of any assets; (D) limits the freedom of any party to engage in any business in any geographic area; (E) contains any "change in control" provision which would be breached by the consummation of the transactions contemplated by this Agreement, ; or (F) contains the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor terms of any guaranty of the Material Subsidiaries payment or performance of any -44- 49 liabilities or obligations the cost of the payment or performance of which liabilities or obligations exceeds, in the aggregate, an amount equal to One Hundred Thousand Dollars ($100,000); (G) is a joint venture or partnership agreement or similar arrangement; or (H) to which any officer or director of any Vapor Company, or a member of any such person's immediate family, is a party or (I) which evidences indebtedness of any Vapor Company, and (ii) (A) Seller is a party to and relates exclusively to the Vapor Business (hereinafter individually referred to as a "Seller Contract" and collectively as the "Seller Contracts"); or (B) any Vapor Company is a party to or bound by any executory contract, lease, license or other agreement the beneficiary of (whether written or oral) that involves:
(A) payments by hereinafter individually referred to as a "Vapor Company Contract" and collectively as the "Vapor Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating Contracts"). Prior to the Insurance Contracts;
(G) a capital maintenance contract, keepwell date hereof Seller has delivered or similar agreement pursuant otherwise made available to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any Buyer copies of the foregoingSeller Contracts and the Vapor Company Contracts including all amendments thereof and modifications thereto.
(iib) All Except as set forth in Schedule 4.21(b) attached hereto, to the knowledge of Seller, each of the contracts, agreements, instruments Seller Contracts and documents set forth on the attached Schedule K (each, a “Material Contract”) Vapor Company Contracts are valid, binding and in full force and effect and enforceable against in accordance with its terms except to the Company extent that: (i) such enforcement may be subject to
(c) Except as set forth in Schedule 4.21(c) attached hereto, Seller is not in default with respect to any of its obligations under any of the Seller Contracts which, individually or in the respective aggregate, would have a Material Subsidiary, as applicableAdverse Effect, and, to the Knowledge knowledge of Seller, there is no basis for any claim that any other parties to any of the Company, each other party thereto Seller Contracts is in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered default with respect to an Additional Closingits obligations under such Seller Contracts; and
(d) Except as set forth in Schedule 4.21(d) attached hereto, as to the knowledge of or prior to such Additional Closing. Neither the Company nor any Seller, none of the Material Subsidiaries Vapor Companies is in material default under or in material breach of, or in receipt with respect to the obligations of any written claim of such material default or material breach, Vapor Company under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Vapor Company Contracts which, individually or in the aggregate, would have a Material Subsidiaries under any such Material Contract. There are no outstandingAdverse Effect, pendingand, or to the Knowledge knowledge of Seller, there is no basis for any claim that any other party to any of the Company, threatened Vapor Company Contracts is in material disputes default with respect to any its obligations under such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersVapor Company Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Westinghouse Air Brake Co /De/)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K2.12, neither the Company nor any of the Material Subsidiaries (i) is not a party to or bound by any executory collective bargaining agreement or contract with any labor union, (ii) is not a party to or bound by any written or oral contract for the employment of any officer, individual employee or other person on a full- time, part-time or consulting basis, or relating to severance pay for any such person, (iii) is not a party to or bound by any (A) written or oral agreement or understanding to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets) or (B) agreement for the sale of any capital asset, (iv) is not a party to or bound by any contract, leasearrangement, license commitment or other agreement understanding (whether written or oral) that involves:
(A) which provides for future payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting 50,000 and is not terminable by Company within 60 days without payment of a penalty or materially limiting premium, other than employment contracts, benefit plans and leases otherwise disclosed in Schedule 2.12 or restricting in another Schedule to this Agreement or listed as an exhibit in the Company Public Reports filed prior to the date hereof, (v) is not a party to or bound by any contract, arrangement, commitment or understanding which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Company Public Reports filed prior to the date hereof, (vi) is not a party to or bound by any confidentiality agreement or any Material Subsidiary agreement which prohibits the Company from freely engaging in any business or competing anywhere in the world world, (vii) is not a party to or providing for exclusivity in bound by any business line, geographic area agreement or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration indenture relating to the Insurance Contracts;
borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company, (Gviii) has not guaranteed any obligation for borrowed money, (ix) is not a capital maintenance contract, keepwell party to or similar bound by any agreement or contract that obligates the Company to pay a customer consequential damages and (x) is not a party to or bound by any agreement pursuant to which any Person has agreed to contribute capital other party is granted exclusive marketing, distribution or surplus to the Company manufacturing rights of any type or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus scope with respect to any Person products or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any services of the foregoingCompany.
(iib) All Except as disclosed on Schedule 2.12, the Company and each of its subsidiaries has performed all obligations required to be performed by them in connection with the contracts, agreements, instruments and documents contracts or commitments set forth on the attached Schedule K (each2.12, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither neither the Company nor any of the Material Subsidiaries is in material default under or in material breach ofits subsidiaries, or in receipt of any written claim of such material default or material breachnor, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge knowledge of the Company, threatened material disputes with respect any other party to any such contract or commitment, is in breach of or default under any contract or commitment set forth on Schedule 2.12, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Contract. TrueAdverse Effect on the Company.
(c) Prior to the date of this Agreement, Acquiror has been given an opportunity to review a true and correct and complete copies copy of each Material Contract have been made available to the Purchaserswritten contract or commitment, and a written description of each oral contract or commitment, set forth on Schedule 2.12, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Section 3.19 of the Company Disclosure Schedule, the Company is not a party to, nor are any of its assets bound by or subject to, any oral or written:
(i) Except as expressly contemplated by this Agreementcontract, the Prior Purchase Agreements lease or as set forth on the attached Schedule K, neither other similar document that has an aggregate value of $10,000 or more or cannot be terminated or canceled without further liability to the Company nor any or the Business upon the giving of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement no more than thirty (whether written or oral30) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Datedays notice;
(Bii) prohibiting contract with any consultant, or materially for the employment of any person, including any consultant, who is engaged in the conduct of the Business,
(iii) contract or commitment limiting or restricting restraining the Company or any Material Subsidiary successor thereto from freely engaging or competing in any business manner or competing anywhere in limiting or controlling the world use or providing for exclusivity in disclosure of confidential information, nor, to Sellers’ knowledge, is any business line, geographic area employee of the Company subject to any such contract or otherwisecommitment;
(Civ) Indebtedness involving liabilities license, assignment, franchise, distributorship or other similar contract that relates in excess whole or in part to any software (other than readily available “off-the-shelf” software), patent, trademark, trade name, service ▇▇▇▇ or copyright or to any ideas, technical assistance or know-how or other Intellectual Property of $5 millionor used by the Company in the conduct of the Business;
(Dv) other than arising in the Ordinary Course of Business, any joint venture, partnership contract relating to borrowed money or other cooperative arrangement indebtedness (including any letters of credit) or similar arrangement the mortgaging, pledging or otherwise placing a lien or other encumbrance on any material asset of the Company;
(vi) contracts relating to joint ventures or agreements involving a sharing of profits or otherwiseprofits;
(Evii) “most favored nations” provisionscontract relating to investigating, testing, handling, removal, cleanup, abatement or other actions in connection with environmental liabilities;
(Fviii) other than arising contract for the future purchase of fixed assets or the maintenance thereof or for the future purchase of materials, supplies or equipment in excess of the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractCompany’s normal operating requirements; or
(Hix) contract containing any material amendmentprovision for delayed damages, modification or supplement in respect of any of the foregoing.
(ii) All of the contractsliquidated damages, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited indemnification not fully covered by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach ofinsurance, or in receipt of any written claim of such material default or material breachextraordinary remedies, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.including potential liability for consequential damages;
Appears in 1 contract
Sources: Stock Exchange Agreement (Brightstar Information Technology Group Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreementfor any Leases or guarantees entered into in connection with any Leases, the Prior Purchase Agreements or as set forth on Schedule 3.10(a), and except for agreements entered into by any Group Company after the attached Schedule Kdate hereof in accordance with Section 5.01, neither the no Group Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesany:
(Ai) payments Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the assets of the Group Companies;
(ii) guaranty of any obligation for borrowed money or other material guaranty;
(iii) lease or Contract under which it is lessee, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $25,000 (excluding the Leases);
(iv) Contract with any Specified Customer or Specified Supplier;
(v) Contract with any Specified Affiliated Network;
(vi) Contracts with any Specified Publisher;
(vii) Contracts relating to any business acquisition or disposition entered into by any Group Company and/or within the last three (3) years, or with respect to which there are any Material Subsidiary remaining material obligations;
(viii) any partnership, joint venture or other similar agreement or arrangement;
(ix) any Contract providing for the settlement or compromise of any Action relating to the Group Companies within the past three (3) years that has obligated a Group Company to pay an amount in excess of $3 million during 25,000, or that imposes material ongoing obligations or restrictions on any of the 12 month period ended on the Closing DateGroup Companies;
(x) Contracts granting to a Group Company any licenses to Intellectual Property Rights owned by a third party (other than (A) “off-the-shelf” or other commercially available software or software services with annual costs of less than $100,000, (B) prohibiting Contracts entered into with employees, contractors, consultants, service providers, resellers or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising distributors in the Ordinary Course of Business, any joint venture(C) confidentiality agreements entered into in the Ordinary Course, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwiseand (D) Open Source Software agreements;
(Exi) “most favored nations” provisions;
Contracts pursuant to which a Group Company grants to a third party any licenses to Company IP (F) other than arising non-exclusive licenses granted in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts);
(Gxii) Contract that (A) restrains the ability of a capital maintenance contract, keepwell Group Company to compete or similar agreement pursuant to which conduct business in a product line or line of business or in any Person has agreed to contribute capital territory or surplus to the (B) restricts a Group Company from purchasing any product or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to service exclusively from any Person or guarantee the obligations that contains a “most favored nation” or similar provision;
(xiii) Contract with any employee or individual independent contractor with any Group Company which provides for annual base compensation in excess of any Person under any insurance contract$200,000, excluding offer letters which provide for at-will employment and no severance obligations; or
(Hxiv) any material amendment, modification collective bargaining agreement or supplement in respect other Contract with any labor organization or other representative of any employees of the foregoinga Group Company.
(iib) All Buyer either has been supplied with, or has been given access to, a true and correct copy of all written Contracts that are referred to or required to be referred to on Schedule 3.10(a) (collectively, such Contracts whether or not written, the contracts, agreements, instruments “Material Contracts”).
(c) Each Material Contract is valid and documents set forth binding on the attached Schedule K (each, a “Material Contract”) are valid, binding Group Companies and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto is in accordance with their respective terms full force and effect (except (A) as limited by applicable bankruptcythe Remedies Exception). No Group Company has, insolvencyin any material respect, reorganizationviolated or breached, moratorium and or committed any default under, any Material Contract. To the knowledge of Seller, no other Laws of general application affecting the enforcement of creditors’ rights generallyPerson has materially violated or breached, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include committed any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach ofunder, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred whichand is continuing through any Group Company’s actions or inactions or, with to the passage knowledge of time Seller, any actions or the giving of noticeinactions by any other party thereto, or both, would that will result in a material default, violation or breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under provisions of any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 1 contract
Contracts and Commitments. (ia) Schedule 5.12(a) lists all Material Contracts (copies of which have heretofore been made available to Purchaser) and describes all currently effective oral agreements and commitments, if any, to which the Company is a party. Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K5.12(a) hereto, neither the Company nor any (i) all Material Contracts constitute valid and binding agreements of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicableCompany, and, to the Knowledge of the Company’s Knowledge, each other party thereto thereto, enforceable in accordance with their respective terms (except that (A) as such enforcement may be limited by applicable or subject to any bankruptcy, insolvency, reorganization, moratorium and other or similar Laws of general application affecting the enforcement of now or hereafter in effect relating to or limiting creditors’ rights generally, generally and (B) as limited by Laws relating the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the availability discretion of specific performancethe court before which any proceeding therefor may be brought, injunctive relief or other equitable remedies or (Cii) as would not be material with respect to the Company and Material Contracts there are no existing material defaults by the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial ClosingCompany, or, if this Agreement to the Company’s Knowledge, by any other party thereto and there is being executed and delivered no event which (whether with respect to an Additional Closingor without notice, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving happening or occurrence of notice, or both, any other event) would result in constitute a material defaultdefault under the Material Contracts by the Company, breach or, to the Company’s Knowledge, by any other party thereto, (iii) the Company is not restricted by agreement from carrying on the Company Business in any geographical location, and (iv) there are no negotiations pending or event of noncompliancein progress to revise any Material Contract.
(b) The Company does not own any Real Property. The only leases for Real Property to which the Company is a party is set forth on Schedule 5.12(b) (collectively, and together with all addenda, the “Company Leases”). With respect to the Company Leases, (i) each such Company Lease is in full force and effect and is binding and enforceable against the Company, and to the Company’s Knowledge, the lessor, in accordance with its terms except that (A) such enforcement may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to or limiting creditors’ rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; (ii) all rental and other charges payable pursuant to the terms and conditions of each such caseCompany Lease have been paid and no rent has been paid in advance more than 30 days; (iii) there are no charges, offsets or defenses against the enforcement by the respective lessors thereunder of any agreement, covenant or condition on the part of the Company to be performed or observed pursuant to the terms of each Company Lease; (iv) there are no defaults by the Company of any agreement, covenant or condition on the part of the Company to be performed or observed pursuant to the terms of each Company Lease; (v) there are no actions or proceedings pending or, to the Company’s Knowledge, threatened, by the lessor under each such Company or Lease; (vi) except for security deposits required by the Company Leases and identified on Schedule 5.12(b), the respective lessor does not hold any of deposits for the Material Subsidiaries Company’s accounts under each such Company Lease; (vii) the Merger and the transactions contemplated hereby will not constitute a prohibited transfer under any such Material Contract. There Company Lease; and (viii) to the Company’s Knowledge, there are no outstandingdefaults by respective lessors of any agreement, pending, covenant or condition on the part of such lessor to be performed or observed pursuant to the Knowledge terms of the Company, threatened material disputes with respect to any such Material ContractCompany Lease. True, correct The current expiration date and complete copies of remaining options to extend each Material Contract have been made available to the PurchasersCompany Lease are as set forth on Schedule 5.12(b) hereto.
Appears in 1 contract
Sources: Merger Agreement (MDRNA, Inc.)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements Agreement or as set forth on the attached Schedule KOrius Contracts Schedule, the attached Orius Intellectual Property Schedule, the attached Orius Employees Schedule, or the attached Orius Employee Benefits Schedule, neither the Company Orius nor any of the Material its Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(Aa) payments by pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan, arrangement or practice, whether formal or informal;
(b) collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(c) management agreement, contract for the Company and/or employment of any Material Subsidiary officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual cash or other compensation in excess of $3 million during 75,000 or providing for the 12 month period ended on payment of any cash or other compensation or benefits upon the Closing Dateconsummation of the transactions contemplated hereby;
(Bd) prohibiting contract or materially limiting agreement requiring the consent of any party thereto upon a change in control of Orius or restricting such Subsidiary, containing any provision which would result in a modification of any rights or obligations of any party thereunder upon a change in control of Orius or such Subsidiary or which would provide any party any remedy (including rescission or liquidated damages) in the Company event of a change in control of Orius or such Subsidiary;
(e) contract under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds (other than advances to Orius's employees in the ordinary course of business consistent with past practice);
(f) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of Orius or any Material Subsidiary of its Subsidiaries or any letter of credit arrangements;
(g) guaranty of any obligation for borrowed money or otherwise (other than endorsements made for collection in the ordinary course of business);
(h) lease or agreement under which Orius or any of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other Person, except for any lease of personal property under which the aggregate annual rental payments do not exceed $25,000 and any lease of real property under which the aggregate annual rental payments do not exceed $50,000;
(i) lease or agreement under which Orius or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by Orius or such Subsidiary;
(j) license or royalty agreements;
(k) nondisclosure or confidentiality agreements;
(l) local service agreements (including cleaning, guard service, lawn and snow removal) and maintenance agreements (including vehicle and equipment maintenance agreements) involving annual payments in excess of $50,000;
(m) contract or group of related contracts with the same party or group of affiliated parties for the purchase of raw materials, commodities, supplies, products, equipment or other personal property or for the receipt of services under which the undelivered balance of such products and services has a selling price in excess of $150,000;
(n) contract or group of related contracts with the same party or group of affiliated parties for the sale of raw materials, commodities, supplies, products or other personal property or for the furnishing of services under which the undelivered balance of such products or services due from Orius or any of its Subsidiaries has a selling price in excess of $750,000;
(o) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, not terminable by Orius or any of its Subsidiaries upon 30 days' or less notice without penalty or involving more than $75,000;
(p) contract or group of related contracts requiring the payment of any fee, penalty or other amount by Orius or any of its Subsidiaries in the event of any failure to perform or late performance of such contract or contracts by Orius or such Subsidiary;
(q) contract relating to the marketing, advertising or promotion of its products;
(r) warranty agreement with respect to services provided (other than agreements containing commercially standard terms and conditions) or indemnity agreement with any supplier under which it is obligated to indemnify such supplier against product liability claims;
(s) agreements relating to the ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(t) assignment, indemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(u) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(v) broker, agent, sales representative, distribution agreement or agreement relating to the export and/or import of any goods or equipment;
(w) power of attorney or other similar agreement or grant of agency;
(x) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;world; or
(Cy) Indebtedness involving liabilities other agreement which is material to its operations or business prospects or involves an annual consideration in excess of $5 million;
(D) other than arising 250,000, whether or not in the Ordinary Course ordinary course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingbusiness.
(ii) Orius Contracts Schedule lists each currently outstanding bid or proposal for business submitted by Orius or any of its Subsidiaries in excess of $1,000,000.
(iii) All of the contracts, agreements, agreements and instruments and documents set forth or required to be set forth on the attached Orius Contracts Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, Orius (and, to the Knowledge of Orius, against the Company, each other party thereto or parties thereto) in accordance with their respective terms (except (A) in each case as limited by applicable bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws) and, assuming they are enforceable against the other parties thereto, shall be in full force and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered effect without penalty in accordance with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any their terms upon consummation of the Material transactions contemplated hereby. Each of Orius and its Subsidiaries has performed all material obligations required to be performed by it and is not in material default under or in material breach of, or of nor in receipt of any written claim (and to its Knowledge there are no claims) of such material default or material breach, breach under any Material Contract. No contract, agreement or instrument to which Orius or such Subsidiary is subject; no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material default, breach or event of noncompliance, in each such case, noncompliance by the Company Orius or any of the Material its Subsidiaries under any material contract, agreement or instrument to which Orius or any of its Subsidiaries is subject; except as set forth on the attached Orius Contracts Schedule, neither Orius nor or any of its Subsidiaries has any present expectation or intention of not fully performing on a timely basis all such Material Contract. There are no outstandingobligations required to be performed by Orius or such Subsidiary under any contract, pending, agreement or instrument to the which Orius or such Subsidiary is subject; and neither Orius nor or any of its Subsidiaries has any Knowledge of any breach or cancellation or anticipated cancellation by the Company, threatened material disputes with respect other parties to any such contract, agreement, instrument or commitment to which it is a party. Neither Orius nor any of its Subsidiaries is a party to any contract, agreement or commitment the performance of which could reasonably be expected to have a Material Contract. True, correct and complete copies of each Material Contract have been Adverse Effect.
(iv) Orius has made available to LISN Shareholder Representative's special counsel a true and correct copy of each of the Purchaserswritten instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on the attached Orius Contracts Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Natg Holdings LLC)
Contracts and Commitments. (a) Schedule 3.11 contains a true and complete list of any and all contracts and agreements entered into by Seller with any Person, and which are necessary to, are used in connection with, or relate to the operation and use of the Premises and the Purchased Assets (except any contract or agreement that involves performance of services or delivery of goods or materials of an annualized amount or value less than Twenty-five Thousand Dollars ($25,000)).
(b) Except as disclosed on Schedule 3.11 attached hereto, (i) Except Seller has performed all material obligations required to be performed by it and is not in default, or in breach of, any Assumed Contract, (ii) to Seller's Knowledge, no Assumed Contract has been breached or cancelled by the other party, and there is no anticipated breach by any other party to any Assumed Contract, (iii) no event or circumstance has occurred that, with notice or lapse of time or both, would constitute a default or breach under any Assumed Contract, (iv) except for Subleases, Seller has not assigned, delegated or otherwise transferred to any Person any of its rights, title or interest under any Assumed Contract, and (v) the Assumed Contracts are in full force and effect, and constitute legal, valid and binding agreements of D&W, enforceable in accordance with their respective terms, except as expressly may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws and principles of equity generally affecting the enforcement of creditors' rights.
(c) Purchaser has received a true and correct copy of all written contracts (and an accurate written description of all oral contracts) which are listed on the attached Assumed Contracts Schedule, together with all amendments, exhibits, attachments, waivers or other changes thereto.
(d) Other than the transactions contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries Seller is not a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closinga possible merger, as sale, restructuring, refinancing or other disposition of all or prior to such Additional Closing. Neither the Company nor any material part of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time Premises or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersPurchased Assets.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements Subject to any order or as set forth on the attached Schedule K, neither the Company nor any action of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesBankruptcy Court:
(A) payments by Except as set forth on Schedule 2.6 attached hereto, the Company and/or Corporation has made available to Buyer for review true and correct copies of all contracts and commitments that are material to the Business and operations of the Corporation and, to the knowledge of the Corporation, all contracts and commitments that involve material liabilities or obligations of the Corporation, including the text of any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Datewritten or oral:
(i) Cooperative research and development agreement, supply agreement, research agreement, research funding agreement, clinical trial agreement, cell processing laboratory agreement, investigator agreement, development agreement, consulting agreement, incoming material transfer agreement, or outgoing material transfer agreement;
(Bii) prohibiting royalty, distribution, agency or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business linelicense agreement (license agreements shall include, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Businessbut not be limited to, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company Corporation or any Material Subsidiary has agreed third party is licensed, or otherwise afforded the right, to contribute capital use, sell, reproduce or surplus to exploit any Person Intellectual Property);
(iii) agreement (except leases of personal property) for the purchase or guarantee sale of products or other personal property, or the obligations provision or purchase of services, involving a sum in excess of $15,000;
(iv) partnership or joint venture agreement;
(v) security, pledge or escrow agreement or any other agreement creating or providing for the creation of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingEncumbrance.
(iiB) All Included in the books and records being conveyed to Buyer at Closing are true and correct copies of all Included Agreements, including all Included Agreements that have not been made available to Buyer that become known to the Buyer or the Corporation prior to the confirmation of the contracts, agreements, instruments and documents Plan.
(C) Except as set forth on the attached in Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and2.6(C), to the Knowledge best of the CompanyCorporation's knowledge, each other of the Included Agreements to which the Corporation is a party thereto is valid, enforceable and in accordance with their respective terms full force and effect, except to the extent that an Included Agreement is rendered invalid, unenforceable, or not in full force and effect as a result of breaches and defaults set forth in Section 365(b)(2) of the Bankruptcy Code.
(except D) Except (Ai) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generallyset forth in Schedule 2.6(D), (Bii) as limited by Laws relating for breaches and defaults set forth in Section 365(b)(2) of the Bankruptcy Code and (iii) for defaults that are cured or deemed waived pursuant to the availability of specific performanceprocedures described in Section 1.4(C)(iii), injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement there is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material no existing breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No Included Agreement by the Corporation; and no event has occurred which, with the passage lapse of time or the giving of notice, notice or both, would result in constitute a material default, breach or event of noncompliance, in each such case, any Included Agreement by the Company Corporation or give rise to a right on the part of any of the Material Subsidiaries under other parties thereto to terminate such Included Agreement or to deprive the Corporation of any material right, or accelerate any of its material obligations, thereunder.
(E) Except (i) as set forth in Schedule 2.6(E), (ii) for breaches and defaults set forth in Section 365(b)(2) of the Bankruptcy Code and (iii) for defaults that are cured or deemed waived pursuant to the procedures described in Section 1.4(C)(iii), to the knowledge of the Corporation there is no existing material breach of any Included Agreement by any party (other than the Corporation) thereto and no event has occurred which, with the lapse of time or the giving of notice or both, could constitute a material breach thereof by such other party or give rise to a right on the part of the Corporation to terminate such Included Agreement or to deprive the other party of any right, or accelerate any obligation of such party, thereunder.
(F) The Corporation makes no representation or warranty as to the transferability or assignability of any Included Agreement (or the rights or obligations thereunder), including, without limitation, as to whether the transfer or assignment of any such Material Contract. There are no outstandingIncluded Agreement will cause any forfeiture or impairment thereunder or as to whether the consent, pendingapproval or act of, or to the Knowledge making of any filing with, or the Companygiving of any notice to, threatened material disputes any other party is required in connection with respect to the assignment or transfer of any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersIncluded Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vimrx Pharmaceuticals Inc)
Contracts and Commitments. (a) Schedule 6.10(a) lists any Contract to which Purchaser or any Subsidiary of Purchaser is a party and (i) that is a “material contract” as defined in Section 601(b)(10) of Regulation S-K promulgated by the SEC, (ii) that involves payment or receipt by Purchaser or any Subsidiary of Purchaser under any such Contract of $100,000 or more in the aggregate or obligations after the date of this Agreement in excess of $100,000 in the aggregate or (iii) that is material to the Purchaser Business. Each contract of the type described in this Section 6.10(a), whether or not set forth on Schedule 6.10(a), is referred to herein as a “Purchaser Material Contract.” Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K6.10(a) hereto, neither the Company nor any (i) all Purchaser Material Contracts constitute valid and binding agreements of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company Purchaser or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicablePurchaser, and, to the Knowledge of the CompanyPurchaser’s Knowledge, each other party thereto thereto, enforceable in accordance with their respective terms (except that (A) as such enforcement may be limited by applicable or subject to any bankruptcy, insolvency, reorganization, moratorium and other or similar Laws of general application affecting the enforcement of now or hereafter in effect relating to or limiting creditors’ rights generally, generally and (B) as limited by Laws relating the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the availability discretion of specific performancethe court before which any proceeding therefor may be brought, injunctive relief or other equitable remedies or (Cii) as would not be material with respect to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance Purchaser Material Contracts there are no existing material defaults by Purchaser or any Subsidiary of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial ClosingPurchaser, or, if this Agreement to Purchaser’s Knowledge, by any other party thereto and there is being executed and delivered no event which (whether with respect to an Additional Closingor without notice, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving happening or occurrence of notice, or both, any other event) would result in constitute a material defaultdefault under the Purchaser Material Contracts by Purchaser or any Subsidiary of Purchaser or, breach to Purchaser’s Knowledge, by any other party thereto, (iii) neither Purchaser nor any Subsidiary of Purchaser is restricted by agreement from carrying on the Purchaser Business in any geographical location, and (iv) there are no negotiations pending or event of noncompliancein progress to revise any Purchaser Material Contract.
(b) Purchaser does not own any Real Property. The only leases for Real Property to which Purchaser is a party are set forth on Schedule 6.10(b) (collectively, and together with all addenda, the “Purchaser Leases”). With respect to the Purchaser Leases, (i) each such Purchaser Lease is in full force and effect and is binding and enforceable against Purchaser, and to Purchaser’s Knowledge, the lessor, in accordance with its terms except that (A) such enforcement may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to or limiting creditors’ rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; (ii) all rental and other charges payable pursuant to the terms and conditions of each such casePurchaser Lease have been paid and no rent has been paid in advance more than 30 days; (iii) there are no charges, offsets or defenses against the enforcement by the respective lessors thereunder of any agreement, covenant or condition on the part of Purchaser to be performed or observed pursuant to the terms of each Purchaser Lease; (iv) there are no defaults by Purchaser of any agreement, covenant or condition on the part of Purchaser to be performed or observed pursuant to the terms of each Purchaser Lease; (v) there are no actions or proceedings pending or, to Purchaser’s Knowledge, threatened, by the Company or lessor under each such Purchaser Lease; (vi) except for security deposits required by the Purchaser Leases and identified on Schedule 6.10(b), the respective lessor does not hold any of deposits for Purchaser’s accounts under each such Purchaser Lease; (vii) the Material Subsidiaries Merger and the transactions contemplated hereby will not constitute a prohibited transfer under any such Material Contract. There Purchaser Lease; and (viii) to Purchaser’s Knowledge, there are no outstandingdefaults by respective lessors of any agreement, pending, covenant or condition on the part of such lessor to be performed or observed pursuant to the Knowledge terms of the Company, threatened material disputes with respect to any such Material ContractPurchaser Lease. True, correct The current expiration date and complete copies of remaining options to extend each Material Contract have been made available to the PurchasersPurchaser Lease are as set forth on Schedule 6.10(b) hereto.
Appears in 1 contract
Sources: Merger Agreement (MDRNA, Inc.)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Neither the Company nor any of the Material Subsidiaries Subsidiary is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesby:
(Ai) payments any agreement, contract or commitment requiring the expenditure or series of related expenditures of funds by the Company and/or any Material Subsidiary and the Subsidiaries in excess of $3 million during 50,000 (other than purchase orders in the 12 month period ended on ordinary course of business for goods necessary for the Closing DateCompany or the Subsidiaries to complete then existing contracts or purchase orders);
(Bii) prohibiting any loan or materially limiting advance to, or restricting investment in, any Person by the Company or any Material Subsidiary from freely engaging in or any business or competing anywhere in the world or providing for exclusivity in agreement, contract, commitment or
(iii) any business line, geographic area or otherwisematerial Debt Obligations;
(Civ) Indebtedness involving liabilities in excess of $5 millionany management service, employment, consulting or other similar type contract or agreement;
(Dv) other than arising in the Ordinary Course of Businessany sales, any joint venture, partnership or other cooperative arrangement distributorship or similar arrangement involving a sharing of profits agreement relating to the products sold or otherwiseservices provided by the Company or the Subsidiaries;
(Evi) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Businessany license, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell royalty or similar agreement pursuant relating to which any Person has agreed to contribute capital or surplus to Proprietary Information of the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractSubsidiary; or
(Hvii) any material amendment, modification collective bargaining or supplement in respect of any of the foregoingother labor union agreement.
(iib) All Set forth in Section 2.7(b) of the contractsDisclosure Schedule is a list of guarantees of, agreementsand performance bonds acquired by, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge Weat▇▇▇▇▇▇▇ ▇▇ any of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws its Affiliates relating to the availability of specific performance, injunctive relief or other equitable remedies or Business.
(Cc) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries Subsidiary is in material default under or in material breach of any provision of, or in receipt default (nor does the Seller have knowledge of any written claim of such material default event or material breachcircumstance that with notice, under any Material Contract. No event has occurred which, with the passage or lapse of time or the giving of notice, or both, would result in a material default, breach or constitute an event of noncompliance, in each such case, by default) under the Company or terms of any of the Contracts and Other Agreements except for breaches or defaults that would not have a Material Subsidiaries under any such Material ContractAdverse Effect. All of the Contracts and Other Agreements are in full force and effect. There are no outstandingpending or, pending, or to the Knowledge knowledge of the CompanySeller, threatened material disputes with respect to any such Material Contract. Trueof the Contracts and Other Agreements.
(d) The enforceability of the Contracts and Other Agreements will not be affected in any manner by the execution and delivery of this Agreement by the Seller or the performance of its obligations hereunder, correct and complete copies including consummation of each Material Contract have been made available to the Purchaserstransactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements Agreement or as set forth on the attached Schedule KCONTRACTS SCHEDULE, the attached INTELLECTUAL PROPERTY SCHEDULE, the attached EMPLOYEES SCHEDULE or the attached EMPLOYEE BENEFITS SCHEDULE, neither the Company nor any of the Material its Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(Aa) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan, arrangement or practice, whether formal or informal;
(b) collective bargaining agreement or any other contract with any labor union, or any severance agreements, programs, policies or arrangements;
(c) management agreement, any contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or any contract providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or any contract relating to loans to any officers, directors or Affiliates;
(d) material contract or agreement requiring the consent of any party thereto upon a change in control of the Company, containing any provision which would result in a modification of any rights or obligations of any party thereunder upon a change in control of the Company or which would provide any party any remedy (including rescission or liquidated damages) in the event of a change in control of the Company;
(e) contract under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds (other than advances to the Company's employees in the ordinary course of business consistent with past practice);
(f) clearing agreements or agreements related to order flow for broker-dealer transactions;
(g) agreement or indenture relating to borrowed money or other Indebtedness of the Company or any of its Subsidiaries or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its Subsidiaries or any letter of credit arrangements;
(h) guaranty of any obligation for borrowed money or otherwise (other than endorsements made for collection in the ordinary course of business);
(i) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other Person, except for any lease of personal property under which the aggregate annual rental payments do not exceed $250,000;
(j) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company and/or any Material Subsidiary Company;
(k) nondisclosure, noncompete or confidentiality agreements or agreements regarding ownership and rights with regard to work produced by employees;
(l) contract or group of related contracts with the same party or group of affiliated parties for the purchase of supplies, products, equipment or other personal property or for the receipt of services under which the undelivered balance of such products and services has a selling price in excess of $3 million during the 12 month period ended on the Closing Date250,000, excluding ordinary course trading obligations with customers and clearing firms;
(Bm) prohibiting contract or materially limiting group of related contracts with the same party or restricting group of affiliated parties for the sale of supplies, products, equipment or other personal property or for the furnishing of services under which the undelivered balance of such products or services due from the Company or any Material Subsidiary of its Subsidiaries has a selling price in excess of $250,000, excluding ordinary course trading obligations with customers and clearing firms;
(n) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six (6) months from the date or dates thereof and not terminable by the Company or any of its Subsidiaries upon 30 days' or less notice without penalty or involving unfulfilled obligations of more than $250,000;
(o) contract or group of related contracts requiring the payment of any fee, penalty or other amount by the Company or any of its Subsidiaries in the event of any failure to perform or late performance of such contract or contracts by the Company or any of its Subsidiaries;
(p) contract relating to the marketing, sale, advertising or promotion of its services continuing over a period of more than six (6) months from the date thereof or involving annual consideration in excess of $250,000;
(q) agreements relating to the ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(r) warranty agreement with respect to its services or its products sold, leased or licensed which contains terms and conditions that differ in any material respect from the Company's or any of its Subsidiaries' standard warranty terms and conditions (a copy of which standard terms and conditions is attached to the CONTRACTS SCHEDULE);
(s) assignment, license, royalty, indemnification or other agreement with respect to any Intellectual Property Rights involving annual consideration in excess of $250,000 (except any licenses granted to the Company or any of its Subsidiaries only for the Company's or such Subsidiaries' own use, of unmodified, mass market software, pursuant to the licensor's ordinary license terms);
(t) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(u) material broker, agent, sales representative, sales or distribution agreement;
(v) power of attorney or other similar agreement or grant of agency;
(w) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseworld;
(Cx) Indebtedness involving liabilities material contract, agreement, commitment or undertaking with any Governmental Entity, other than in the ordinary course of business as are usual and customary with respect to the Company's business; or
(y) other agreement which is material to its operations or business prospects or involves an annual consideration in excess of $5 million;
(D) other than arising 250,000, whether or not in the Ordinary Course ordinary course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingbusiness.
(ii) All of the contracts, agreements, agreements and instruments and documents set forth or required to be set forth on the attached Schedule K CONTRACTS SCHEDULE (each, a “Material Contract”"MATERIAL CONTRACT") are valid, binding and (subject to general principles of equity which may limit the enforceability of restrictions on competition and/or solicitation such as non-compete and non-solicitation agreements) enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws terms. Each of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall its Subsidiaries has performed all obligations required to be performed by it in all material respects and is not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in each such case, in any material respect, nor in receipt of any written claim of such material default or material breach, breach under any Material Contract. No ; no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material default, breach or event of noncompliance, in each such case, in any material respect, by the Company or any of the Material its Subsidiaries under any Material Contract; and neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing on a timely basis all such obligations required to be performed by the Company or any of its Subsidiaries under any Material Contract; and neither the Company nor any of its Subsidiaries has any Knowledge of any breach or cancellation or anticipated cancellation, in each case, in any material respect, by the other parties to any Material Contract. There are no outstandingNeither the Company nor any of its Subsidiaries is a party to any contract, pending, agreement or commitment the performance of which could reasonably be expected to the Knowledge have a Material Adverse Effect.
(iii) The Purchasers' special counsel has been supplied with a true and correct copy of each of the Companywritten instruments, threatened material disputes with respect to any such Material Contract. Trueplans, correct contracts and complete copies agreements and an accurate description of each Material Contract have been made available of the oral arrangements, contracts and agreements which are referred to on the Purchasersattached CONTRACTS SCHEDULE, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Stock Purchase and Recapitalization Agreement (optionsXpress Holdings, Inc.)
Contracts and Commitments. (a) Set forth on Schedule 4.10 of the Disclosure Schedule is a list of each of the following categories of (a) written contracts, instruments, leases, agreements, arrangements, undertakings and commitments to which the Seller is a party or otherwise bound and (b) oral contracts, agreements, commitments and understandings to which the Seller is a party or otherwise bound that (I) were either entered into or have material obligations which are performable after December 31, 2005, and (II) involve the receipt or delivery by the Acquired Business of an amount in excess of $25,000 (together with a brief description of the material terms of any such oral agreement), in each instance (a) or (b), relating to the Acquired Business or the Purchased Assets and which have obligations that remain outstanding (collectively, the “Material Contracts”): (i) Except as expressly contemplated agreements not to compete with any Person in any business or geographic territory, not to engage in any line of business or not to disclose information; (ii) real property leases, rental or occupancy contracts, or any other material contracts affecting the ownership of, purchase of, sale of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property; (iii) indentures, mortgages, promissory notes, loan agreements, Guaranties or other agreements for the borrowing, lending or investing of money or creating or reflecting a Lien on Purchased Assets; (iv) except 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, agreements involving receipt, potential receipt, payment or potential payment or other expenditure of more than $10,000 in the aggregate that is not cancelable on less than 1 months’ notice without the payment of a penalty or a payment for future products or services which will not be received or rendered; (v) warranties, guaranties and/or other similar undertakings extended by this Agreementthe Seller or the Acquired Business; (vi) agreements providing for the disposition of a material item of the Purchased Assets, other than in the ordinary course of business (for such purposes, a material Purchased Asset is one that is important to the operation of the Acquired Business, the Prior Purchase Agreements disposition of which would prevent an orderly and uninterrupted continuation of operations and the replacement of which would unreasonably consume time and funds); (vii) consulting, employment collective bargaining and union agreements; (viii) agreements with sales representatives, dealers or distributors; (ix) partnership, joint venture or similar relationship agreements involving a sharing of profits, losses, costs or liabilities; (x) license, franchise or management agreements; (xi) agreements that are not cancelable on thirty (30) days or less notice without penalty; or (xii) any other agreement that the termination of which, or the expiration without renewal of which, would have a Material Adverse Effect.
(b) Seller has previously furnished to Purchaser true, complete and correct copies of all written agreements, as amended, required to be set forth on Schedule 4.10. Each of the attached Schedule KMaterial Contracts is in full force and effect and is the valid and legally binding obligation of Seller and, neither to the Company nor Knowledge of Seller, the other parties thereto, each enforceable in accordance with its terms, subject only to bankruptcy, insolvency or similar laws affecting the rights of creditors generally and to general equitable principles. Seller has not received notice of its default under any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the CompanySeller, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No no event has occurred which, with the passage of time or the giving of notice, notice or both, would result in constitute a material defaultdefault by Seller thereunder. Seller has not received notice of the pending or threatened cancellation, breach revocation or event termination of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under Contracts, including, without limitation, any such Material Contract. There agreements relating to borrowed money to which Seller is a party or to which it or its assets are no outstandingbound or subject, pendingnor, or to the Knowledge of the CompanySeller, threatened material disputes with respect are there any facts or circumstances that could lead to any such Material Contract. Truecancellation, correct and complete copies revocation or termination.
(c) Seller has taken such actions as is set forth on Schedule 4.10(c) of each Material Contract have been made available to the PurchasersDisclosure Schedule.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements The Disclosure Schedule sets forth a complete and accurate list of all Contracts to which a Transferred Company or as set forth on the attached Schedule K, neither the Company nor any of the Material its Subsidiaries is a party to (excluding policies of insurance or reinsurance issued by First Re in the ordinary course of business) or by which any of their respective assets is bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary which involve an amount in excess of $3 million during 25,000 or are otherwise material to the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the business of any Transferred Company or any Subsidiary of any Transferred Company (the "Material Subsidiary from freely engaging in any business or competing anywhere in Contracts"). Each of the world or providing for exclusivity in any business lineMaterial Contracts is a legal, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess valid and binding obligation of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving either a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Transferred Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the one of its Subsidiaries enforceable against such Transferred Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material such Subsidiary, as applicablethe case 27 33 may be, and, to the Knowledge of Seller, against the Companyother parties thereto, each other party thereto in accordance with their its respective terms (terms, except (A) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and other Laws by general principles of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closingequity. Neither the Seller, any Transferred Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt Subsidiary of any Transferred Company has received written claim notice of such material default a cancellation of or material breach, under an intent to cancel any Material Contract. No event has occurred which, with the passage There exists no breach of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by default related to any Material Contract on the part of any Transferred Company or any of the Material Subsidiaries under any such Material Contract. There are no outstandingits Subsidiaries, pendingor, or to the Knowledge of Seller, on the Company, threatened material disputes with respect part of any other party to any such Material Contract. True.
(b) Except as set forth in the Disclosure Schedule, correct and complete copies none of each Material Contract have been made available the Transferred Companies or any of their Subsidiaries is a party to any Contract: (i) containing covenants limiting the freedom of a Transferred Company or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person or to incur indebtedness for borrowed money; (ii) containing "change of control" or similar provisions; (iii) containing provisions providing for the indemnification by any Transferred Company or any Subsidiary of a Transferred Company of any Person; (iv) relating to the Purchasersemployment of Transferred Employees and other Contracts with directors or Transferred Employees of any Transferred Company or any Subsidiary of a Transferred Company which cannot be terminated by the Transferred Company or the respective Subsidiary upon notice of 60 days or less without penalty or premium; (v) relating to patent, trademark, service mark, ▇▇ade name, and copyright and franchise licenses, royalty agreements or similar Contracts; (vi) forming joint ventures; (vii) under which any Transferred Company or any of its Subsidiaries has guaranteed the obligations of any Person (other than insurance or reinsurance provided by First Re pursuant to insurance or reinsurance agreements entered into by First Re in the ordinary course of business in a manner consistent with past practice); or (viii) with any Governmental Authority affecting the business of any Transferred Company or any Subsidiary of any Transferred Company and not made in the ordinary course of business.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this AgreementNone of the Transferred Assets is subject to:
(1) any agreement, contract or commitment requiring the Prior Purchase Agreements expenditure or as set forth on series of related expenditures of funds;
(2) any agreement, contract or commitment requiring the attached Schedule Kpayment for goods or services whether or not such goods or services are actually provided or the provision of goods or services at a price less than the Seller's cost of producing such goods or providing such services;
(3) any loan or advance to, neither or investment in, any Person or any agreement, contract, commitment or understanding relating to the Company nor making of any such loan, advance or investment;
(4) any debt obligations;
(5) any management service, employment, consulting or other similar type contract or agreement;
(6) any agreement, contract or commitment that would limit the freedom of the Purchaser or any affiliate of the Purchaser following the Closing Date to engage in any line of business, own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the Material Subsidiaries is a party Transferred Assets or to compete with any Person or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging to engage in any business or competing anywhere in the world or providing for exclusivity activity in any business line, geographic area or otherwisearea;
(C7) Indebtedness involving liabilities any agreement, lease, contract or commitment or series of related agreements, leases or commitments not entered into in excess the ordinary course of $5 millionbusiness of the Seller, not cancelable by the Seller without penalty to the Seller within 30 calendar days;
(D) other than arising in 8) any agreement or contract obligating the Ordinary Course Seller or that would obligate or require any subsequent owner of Business, the business or any joint venture, partnership of the Transferred Assets to provide for indemnification or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisecontribution with respect to any matter;
(E9) “most favored nations” provisionsany sales, distributorship or similar agreement relating to the products sold or services provided by the Seller;
(F10) other than arising in the Ordinary Course of Businessany license, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell royalty or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractagreement; or
(H11) any other agreement, contract or commitment that might reasonably be expected to have a material amendment, modification or supplement in respect adverse effect on the value of any of the foregoingTransferred Asset.
(ii) All Except as set forth in the Disclosure Schedule, the transfer of the contracts, agreements, instruments and documents set forth on Transferred Assets do not require the attached Schedule K (each, receipt of a “Material Contract”) are valid, binding and enforceable against the Company consent or the respective Material Subsidiary, as applicable, and, to the Knowledge waiver of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief any Person or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or governmental entity prior to the Initial Closingsale, orassignment, if transfer, conveyance or delivery thereof pursuant to this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersAgreement.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the The Company nor any of the Material Subsidiaries is not a party to or subject to or bound by any executory contract, lease, license of the following Contracts or other agreement proposed transactions that involve: (i) an indebtedness obligation (whether written incurred, assumed, guaranteed, contingent, or oralsecured by any asset or otherwise granting of a Lien) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during 50,000 in the 12 month period ended on the Closing Date;
aggregate, (Bii) prohibiting an obligation (contingent or materially limiting or restricting otherwise) of the Company or a payment to the Company in excess of $10,000 individually or in excess of $50,000 in the aggregate, (iii) any Material Subsidiary from freely engaging non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company, or that otherwise restrict the ability of the Company to compete in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;with any Person, (iv) the license of any Intellectual Property Rights, trade secret, or other proprietary right to or from the Company, or (v) indemnification by the Company, including, without limitation, indemnification with respect to infringements of proprietary rights.
(Ca) Indebtedness involving The Company has not: (i) incurred an indebtedness for borrowed money or incurred any other liabilities (whether incurred, assumed, guaranteed, or secured by any asset or otherwise granting of a Lien) in excess of $5 million;
10,000 individually or in excess of $50,000 in the aggregate, which is not paid in full, (Dii) declared, set aside, or paid any dividends or other distributions with respect to any of the Company’s capital stock or any redemption, purchase or other acquisition of any shares of the Company’s capital stock (other than arising in the Ordinary Course pursuant to a termination of Business, employment or services of an employee or consultant pursuant to any joint venture, partnership option agreement or other cooperative arrangement agreement approved by the Board), (iii) sold, assigned, transferred, licensed mortgaged, pledged, or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect otherwise disposed of any of the foregoing.
(ii) All properties or assets or rights of the contracts, agreements, instruments and documents set forth on Company (other than a sale of inventory in the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge ordinary course of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generallybusiness), (Biv) as limited by Laws relating made any loans or advances to any Person (other than advances for ordinary travel expenses or trade payables incurred in the availability ordinary course of specific performance, injunctive relief business),or (v) guaranteed or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include indemnified any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt indebtedness of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersother Person.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.15(a) of the Disclosure Schedule sets forth each of the following types of Contracts currently in force pursuant to which any of A2iA and its Subsidiaries is a party or is bound (each a “Material Contract”): (i) Except as expressly any Contract that provides for post-employment or post-consulting liabilities or obligations, including severance pay other than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation; (ii) any Contract or A2iA Employee Plan under which payments or obligations owed to any employee of A2iA or any of its Subsidiaries will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement or under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to a change in control or otherwise; (iii) any collective bargaining agreements, including the Prior Purchase Agreements CBA, or as set forth on other Contract with any labor union or similar Representative of employees of A2iA or any of its Subsidiaries; (iv) any Contract relating to the attached Schedule Kdisposition or acquisition of assets, neither in each case other than inventory sold in the Company nor ordinary course of business and consistent with past practice; (v) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person; (vi) any Contract for the purchase of materials, supplies, equipment or services (1) from a Related Party or (2) under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, €150,000; (vii) any Contract with a Material Supplier; (viii) any Contract with a Material Customer; (ix) any Contract relating to the acquisition, transfer or development of any Intellectual Property or Intellectual Property Rights owned by A2iA or one of its Subsidiaries, incorporated into any of the Material A2iA Products or otherwise used in the conduct of the businesses of A2iA or any of its Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
than (A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
intercompany Contract or (B) prohibiting any employment Contract, including any Contracts with trainees or materially limiting or restricting the Company or temporary workers; (x) any Material Subsidiary from freely engaging in Outbound IP Licenses; (xi) any business or competing anywhere in the world or providing for exclusivity in Inbound IP Licenses; (xii) any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration Contract relating to the Insurance Contracts;
guarantee (Gwhether absolute or contingent) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company by A2iA or any Material Subsidiary of its Subsidiaries of (1) the performance of any other Person (other than A2iA or one of its Subsidiaries) or (2) the whole or any capital maintenance contract part of the indebtedness or similar agreement pursuant liabilities of any other Person (other than A2iA or one of its Subsidiaries); (xiii) any Contract containing an obligation to which the Company indemnify any officer, director, manager or agent of A2iA or any Material Subsidiary has agreed to contribute capital or surplus to of its Subsidiaries other than obligations associated with any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except non-compete undertaking (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, which can be waived by A2iA or its Subsidiary at its exclusive election and (B) as limited for which a waiver by Laws relating A2iA or its Subsidiary will result in avoidance of such obligation; (xiv) any Contract which limits or restricts (1) where A2iA or any of its Subsidiaries may conduct business, (2) where A2iA or any of its Subsidiaries may use, exploit, assert or enforce any A2iA IP, (3) the type or lines of business in which A2iA or any of its Subsidiaries may engage or (4) any acquisition of assets or stock (tangible or intangible) by A2iA or any of its Subsidiaries; (xv) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, €250,000 and that cannot be terminated by A2iA or its applicable Subsidiary at will on less than ninety (90) days’ notice; (xvi) any Contract for the borrowing or lending of money, or the availability of specific performance, injunctive relief or other equitable remedies or credit (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, except credit extended by the Company A2iA or any of its Subsidiaries to customers in the Material Subsidiaries under ordinary course of business and consistent with past practice); (xvii) any such Material Contract. There are no outstandingReal Property Lease; (xviii) any Contract providing for any individual capital expenditure of €50,000 or more during any twelve (12) month period or capital expenditures of €150,000 or more, pendingin the aggregate, or to over the Knowledge life of the Company, threatened material disputes with respect Contract; (xix) any Contract relating to any such Material Contract. Truehedging, correct option, derivative or other similar transaction and complete copies any foreign exchange position or contract for the exchange of each Material Contract have been made available to the Purchasers.currency; and
Appears in 1 contract
Sources: Share Purchase Agreement
Contracts and Commitments. (a) Contracts. Schedule 5.9 sets forth a complete and accurate --------- list of all Contracts of the following categories:
(i) Except as expressly contemplated by this Agreement, Contracts not made in the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any ordinary course of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:business;
(Aii) payments by the Company and/or any Material Subsidiary Employment contracts and severance agreements;
(iii) Labor or union contracts;
(iv) Distribution, franchise, license, sales, commission, consulting agency or advertising contracts which are not cancelable on thirty (30) calendar days notice;
(v) Contracts involving expenditures or liabilities, actual or potential, in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting 20,000 or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be otherwise material to the Company and the Company SubsidiariesCompany, taken as a whole); provided, thatand not cancelable (without liability) within thirty (30) calendar days;
(vi) Contracts or commitments relating to commission arrangements with others;
(vii) Promissory notes, for the avoidance loans, agreements, indentures, evidences of doubtindebtedness, “Material Contracts” shall not include any contract that will be fully performed letters of credit, guarantees, or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect other instruments relating to an Additional Closingobligation to pay money, as of or prior to such Additional Closing. Neither whether the Company nor shall be the borrower, lender or guarantor thereunder or whereby any assets are pledged (excluding credit provided by the Company to purchasers in the ordinary course of business;
(viii) Contracts containing covenants limiting the Material Subsidiaries is in material default under or in material breach of, or in receipt freedom of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any officer, director, shareholder or affiliate, to engage in any line of business or compete with any person;
(ix) Any Contract with the Material Subsidiaries under United States, state or local government or any such Material Contractagency or department thereof;
(x) Leases of real property;
(xi) Leases of personal property not cancelable (without liability) within thirty (30) calendar days; and
(xii) Governmental or regulatory Permits or approvals required to conduct the Business as presently conducted. There are no outstanding, pending, or The Company has delivered to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. TrueSub and Parent true, correct and complete copies of all of the written Contracts listed on Schedule 5.9, including all amendments and supplements thereto, and a written summary setting forth the material terms and conditions of each Material and every oral Contract have been made available to the Purchaserslisted on Schedule 5.9, including all amendments and supplements thereto.
Appears in 1 contract
Sources: Merger Agreement (Datalink Net Inc)
Contracts and Commitments. Prior to the Closing, SSI shall have delivered or made available to HOLL or its counsel all contracts and agreements to which SSI or any ▇▇ its Subsidiaries is a party, other than agreements that will expire in accordance with their terms as of or prior to the Closing without any penalty or premium and without any continuing obligation or liability thereunder on the part of SSI, any of its Subsidiaries, HOLL or the Surviving Corporation (collectively, the "Contracts") (i) ▇ ▇▇ing agreed and acknowledged by HOLL that portions of copies of certain Contracts so delivered or ma▇▇ ▇vailable have been redacted). Item 2.10 of the Disclosure Schedules sets forth a true and correct list of all Material Contracts to which SSI or any of its Subsidiaries are a party, or by which SSI or any of its Subsidiaries are bound. Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on Item 2.10 of the attached Schedule KDisclosure Schedules, neither the Company nor any in each case, each of the Material Subsidiaries Contracts (i) is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable in full force and effect against the Company SSI or the respective Material its Subsidiary, as applicable, and, to the Knowledge knowledge of SSI, the Company, each other party thereto in accordance with their respective terms or parties thereto, and (except (Aii) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability knowledge of specific performanceSSI, injunctive relief is not voidable by the other party or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiariesparties thereto for any reason. In each case, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No no event has occurred which, with through notice or the passage of time or the giving of notice, or both, otherwise would result in a material default, breach or event default under the terms of noncompliance, in each such case, by the Company or any of the Material Contracts by SSI or its Subsidiary or, to the knowledge of SSI, any other party. Neither SSI nor any of its Subsidiaries under has received written notice that any party to any of the Material Contracts intends to cancel, terminate or modify any such Material Contract. There are no outstanding, pending, Contract or to that any party which has an option or extension right running in favor of such party under the Knowledge terms of the Company, threatened material disputes with respect to any such Material ContractContract has notified SSI in writing of its election not to exercise such option or extension right. TrueOn May 5, 2004, SSI delivered to HOLL (a) the Schedule of Certain Material Contracts attached hereto ▇▇ ▇tem 2.10A of the Disclosure Schedule (the "Redacted Contract Schedule"), and (b) true and correct and complete copies of each Material contract referred to on the Redacted Contract Schedule, except that provisions of the contracts which identify the name of the contracting party and the type of license have been made available redacted. No later than ten days after the date hereof, SSI shall deliver to HOLL true and correct copies of the Purchasersnon-redacted versions of such co▇▇▇▇cts and all other customer contracts.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.12(a) and the leases set forth in Schedule 3.13 comprise in the aggregate a true and complete list of:
(i) Except as expressly contemplated by this Agreementany Contracts between the Seller or a Program Affiliate, the Prior Purchase Agreements or as set forth on the attached Schedule Kone hand, neither and any Third Party, on the Company nor other, involving per annum payments in excess of [***] regarding research, development, manufacture, sale, distribution, or service with respect to the HIV Program or the MEK Program;
(ii) any outstanding purchase order or supply agreement issued by the Seller or any Program Affiliate in connection with the Programs representing an obligation in excess of the Material Subsidiaries [***]
(iii) all joint venture, strategic alliance, partnership or similar agreements to which Seller or any Program Affiliate is a party to that provide for the manufacture, marketing, sale or bound by distribution of any executory contract, lease, license products or other agreement (whether written or oral) that involves:
(A) payments by services of the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing DatePrograms;
(Biv) prohibiting any material Contracts with any Affiliate of Seller or materially limiting current or restricting former officer, director or stockholder of Seller or its Affiliates relating to the Company Programs other than inter-company services agreements;
(v) any Contracts containing covenants of Seller or any Material Subsidiary from freely engaging Program Affiliates not to compete in any line of business or competing any geographical area relating to the Programs, or covenants of any other Person not to compete with Seller or any Program Affiliates anywhere in the world or providing for exclusivity in any business line, geographic area or otherwisethe specific areas of the Programs;
(Cvi) Indebtedness involving liabilities outstanding agreements of guaranty, surety or indemnification, direct or indirect, by Seller or any Program Affiliates in excess respect of $5 millionthe Programs other than express and implied product and service warranties and indemnities included in purchase orders, commercial Contracts, and other Contracts in the ordinary course of business;
(Dvii) any Contracts other than arising in the Ordinary Course Assumed contracts that, to Seller’s knowledge, impose a material Lien other than a Permitted Lien on any of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisethe Transferred Assets;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(Hviii) any material amendment, modification or supplement in respect Contracts for the sale of any of the foregoingTransferred Assets or any Contracts for the grant to any Person of any preferential rights to purchase any of the Transferred Assets of the Programs;
(ix) any other Contracts material to the Programs involving per annum payments in excess of [***]; and
(x) any other Assumed Contracts with aggregate obligations in excess of [***]
(b) Seller has delivered to Purchaser copies of the documents identified on Schedule 3.12(a) and Schedule 3.13.
(iic) All Each of the contractsAssumed Contracts is in full force and effect and is the legal, agreementsvalid and binding obligation of Seller or (Seller’s transferring Affiliate(s) where appropriate), instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto it in accordance with their respective terms (except (A) as limited by applicable bankruptcyits terms, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating subject to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional ClosingEnforceability Exceptions. Neither the Company Seller nor any of the Material Subsidiaries is Program Affiliate(s) is, to Seller’s knowledge, in material default under or any Assumed Contract, nor to Seller’s knowledge, is any other party in material breach ofdefault thereunder, or in receipt of any written claim of such material default or material breach, under any Material Contract. No and no event has occurred which, that with the passage lapse of time or the giving of notice, notice or both, both would result in constitute a material default, breach or event of noncompliance, in each such case, by the Company or default thereunder. No party to any of the Material Subsidiaries under Assumed Contracts has given Seller or any such Material ContractProgram Affiliate written notice of the exercise of any termination rights with respect thereto. There are no outstanding, pending, or Except for Third Party consents to the Knowledge Assumed Contracts listed on Schedule 3.12(c), no Transfer of an Assumed Contract to Purchaser pursuant hereto requires any consent of any other Person or will constitute a breach or default thereunder (including a breach or default after giving notice or the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies lapse of each Material Contract have been made available to the Purchaserstime).
Appears in 1 contract
Sources: Asset Purchase Agreement (Ardea Biosciences, Inc./De)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, Section (a) of the Prior Purchase Agreements or as set forth on Contracts Schedule lists each employment agreement with the attached Schedule K, neither Temporary Personnel whose base annual compensation in 2019 was in excess of $200,000 (including all written amendments thereto) to which the Company nor or any of the Material its Subsidiaries is a party (collectively, the "Temporary Personnel Contracts").
(b) Each Billable Staffing Independent Contractor has entered into an agreement with EdgeRock Technologies, LLC in materially the form attached to or bound by any executory contractsection (b) of the Contracts Schedule (collectively, lease, license or other agreement the "Billable Staffing Independent Contractor Contracts").
(c) Section (c) of the Contracts Schedule lists the following agreements (whether written or oraloral and including all amendments and supplements thereto) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting to which the Company or any Material Subsidiary from freely engaging in any business of its Subsidiaries is a party or competing anywhere in the world beneficiary or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to by which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary of its Subsidiaries or any of their respective properties or assets is bound or otherwise obligated, which is not listed in Sections (a) or (b) of the Contracts Schedule (collectively with the agreements and policies listed in Sections (a) and (b) of the Contracts Schedule, the "Business Contracts"): (i) agreements evidencing, securing or otherwise relating to any Indebtedness for which the Company or any of its Subsidiaries is, directly or indirectly, liable; (ii) capital maintenance contract or similar agreement operating leases or conditional sales agreements relating to vehicles, equipment or other assets of the Company or its Subsidiaries; (iii) agreements pursuant to which the Company or any Material Subsidiary has agreed of its Subsidiaries is entitled or obligated to contribute capital either acquire any material assets from, or surplus sell any material assets to, a third Person; (iv) employment or consulting agreements providing for annual base salary or annual fees in excess of one hundred thousand dollars ($100,000), or collective bargaining agreements or arrangements with respect to employees of the Company or its Subsidiaries; (v) other than purchase orders entered into in the ordinary course of business, any contract or group of related contracts with any supplier required to be listed on the Customers and Suppliers Schedule; (vi) other than purchase orders entered into in the ordinary course of business, any contract or group of related contracts with any customer required to be listed on the Customers and Suppliers Schedule; (vii) material contracts relating to the licensing of material Intellectual Property by the Company or any of its Subsidiaries to a third-party or by a third-party to the Company or any of its Subsidiaries, in each case, other than (A) licenses for commercially available, off‑the‑shelf software used by the Company or any of its Subsidiaries or (B) agreements entered into by the Company or any of its Subsidiaries with customers in the ordinary course of business; (viii) contracts relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or guarantee material line of business entered into during the obligations past three (3) years or the future acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person under any insurance contractor material line of business; or
(Hix) any material amendmentstock purchase, modification stock option or supplement in respect of similar plan; and (x) any of the foregoingjoint venture, strategic alliance, revenue sharing, partnership or similar contract.
(iid) All The Company has made available to the Purchaser a true, correct and complete copy of each written Business Contract. To the contractsCompany's knowledge, agreementsthere are no material oral Business Contracts. Assuming receipt of all consents, instruments approvals and documents set forth on authorizations as contemplated by the attached Schedule K (eachAuthorization Schedule, each Business Contract is in full force and effect, and is a “Material Contract”) are validlegal, valid and binding and enforceable against obligation of the Company or a Subsidiary of the respective Material Subsidiary, as applicableCompany which is party thereto, and, to the Knowledge knowledge of the Company, of the other parties thereto enforceable against each other party thereto of them in accordance with their respective terms (except (A) as limited by applicable its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by similar Laws relating to or affecting creditors' rights or to general principles of equity. Assuming receipt of all consents, approvals and authorizations as contemplated by the availability of specific performanceAuthorization Schedule, injunctive relief or other equitable remedies or (C) except as would not be material to expressly set forth on the Company and the Company SubsidiariesContracts Schedule, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither neither the Company nor any Subsidiary of the Material Subsidiaries Company (as applicable) is in material default under or any contract required to be listed on the Contracts Schedule, and, to the knowledge of the Company, no other party to each of the contracts required to be listed on the Contracts Schedule is in material breach of, or in default thereunder. Assuming receipt of any written claim of such material default or material breachall consents, under any Material Contract. No approvals and authorizations as contemplated by the Authorization Schedule, except as expressly set forth on the Contracts Schedule, no event has occurred which, that with the passage lapse of time or the giving of noticenotice or both would constitute a material breach or default on the part of the Company, or bothany Subsidiary of the Company or, would result in a material defaultto the knowledge of the Company, breach or event of noncompliance, in each such case, by any other party under any contract required to be listed on the Contracts Schedule. No party to any contract required to be listed on the Contracts Schedule has provided written notice to the Company or any of the Material its Subsidiaries under of any such Material Contract. There are no outstandingdefault under, pendingintention to terminate, or to the Knowledge of the Company, threatened material disputes unresolved dispute with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserscontract.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.15(a) of the Disclosure Schedule sets forth each of the following types of Contracts currently in force pursuant to which any of A2iA and its Subsidiaries is a party or is bound (each a “Material Contract”):
(i) Except as expressly any Contract that provides for post-employment or post-consulting liabilities or obligations, including severance pay other than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation;
(ii) any Contract or A2iA Employee Plan under which payments or obligations owed to any employee of A2iA or any of its Subsidiaries will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement or under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is whether pursuant to a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary change in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area control or otherwise;
(Ciii) Indebtedness involving liabilities in excess any collective bargaining agreements, including the CBA, or other Contract with any labor union or similar Representative of $5 millionemployees of A2iA or any of its Subsidiaries;
(Div) any Contract relating to the disposition or acquisition of assets, in each case other than arising inventory sold in the Ordinary Course ordinary course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisebusiness and consistent with past practice;
(Ev) “most favored nations” provisionsany Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person;
(Fvi) other than arising in any Contract for the Ordinary Course purchase of Businessmaterials, material third-supplies, equipment or services (1) from a Related Party or (2) under which the aggregate payments made to one party administration or other insurance policy administration group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, €150,000;
(vii) any Contract with a Material Supplier;
(viii) any Contract with a Material Customer;
(ix) any Contract relating to the Insurance Contractsacquisition, transfer or development of any Intellectual Property or Intellectual Property Rights owned by A2iA or one of its Subsidiaries, incorporated into any of the A2iA Products or otherwise used in the conduct of the businesses of A2iA or any of its Subsidiaries other than (A) any intercompany Contract or (B) any employment Contract, including any Contracts with trainees or temporary workers;
(Gx) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus Outbound IP Licenses;
(xi) any Inbound IP Licenses;
(xii) any Contract relating to the Company guarantee (whether absolute or contingent) by A2iA or any Material Subsidiary of its Subsidiaries of (1) the performance of any other Person (other than A2iA or one of its Subsidiaries) or (2) the whole or any capital maintenance contract part of the indebtedness or similar agreement pursuant liabilities of any other Person (other than A2iA or one of its Subsidiaries);
(xiii) any Contract containing an obligation to indemnify any officer, director, manager or agent of A2iA or any of its Subsidiaries other than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation;
(xiv) any Contract which limits or restricts (1) where A2iA or any of its Subsidiaries may conduct business, (2) where A2iA or any of its Subsidiaries may use, exploit, assert or enforce any A2iA IP, (3) the type or lines of business in which A2iA or any of its Subsidiaries may engage or (4) any acquisition of assets or stock (tangible or intangible) by A2iA or any of its Subsidiaries;
(xv) any Contract under which the Company aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, €250,000 and that cannot be terminated by A2iA or its applicable Subsidiary at will on less than ninety (90) days’ notice;
(xvi) any Contract for the borrowing or lending of money, or the availability of credit (except credit extended by A2iA or any Material Subsidiary has agreed of its Subsidiaries to contribute customers in the ordinary course of business and consistent with past practice);
(xvii) any Real Property Lease;
(xviii) any Contract providing for any individual capital expenditure of €50,000 or surplus more during any twelve (12) month period or capital expenditures of €150,000 or more, in the aggregate, over the life of the Contract;
(xix) any Contract relating to any Person hedging, option, derivative or guarantee other similar transaction and any foreign exchange position or contract for the obligations exchange of any Person under any insurance contractcurrency; orand
(Hxx) any other Contract material amendment, modification or supplement in respect to the businesses of any of the foregoingA2iA and its Subsidiaries.
(iib) All An accurate and complete copy of the contractseach Material Contract (including all amendments thereto) has been made available to Buyer.
(c) Neither A2iA nor its Subsidiaries, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, andnor, to the Knowledge of the CompanySellers’ Knowledge, each any other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcyto a Material Contract, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material breach, violation or default under or in material breach ofunder, or in receipt of has received written notice that it has breached, violated or defaulted under (nor does there exist any written claim of such material default or material breach, condition under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, notice or both, would result reasonably be expected to cause such a breach, violation or default under) any Material Contract.
(d) Except as set forth in Schedule 3.15(d) of the Disclosure Schedule, each Material Contract is a material defaultvalid, breach binding and enforceable obligation of A2iA and/or its Subsidiary party to such Material Contract and, to the Sellers’ Knowledge, the other party or event of noncomplianceparties thereto, in accordance with its terms and is in full force and effect, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or case except to the Knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of the Company, threatened material disputes with respect to any such Material Contract. True, correct good faith and complete copies fair dealing (regardless of each Material Contract have been made available to the Purchaserswhether enforcement is sought in equity or at law).
Appears in 1 contract
Contracts and Commitments. (a) Except as listed and described on Schedule 4.23, or any other Schedule annexed hereto, the Seller is not a party to any:
(i) Contract (as defined below) with any present or former shareholder, director, officer, employee or consultant (including, without limitation, any employment agreement);
(ii) Contract for the future purchase of, or payment for, supplies, products, insurance or financial instruments involving annual payment in excess of $50,000 or for the performance of services by a third party involving annual payment in excess of $25,000;
(iii) Contract to sell or supply products or to perform services involving receipt by the Seller of consideration in excess of $50,000 annually;
(iv) lease under which the Seller is the lessor or lessee relating to either real or personal property and involving annual payments by or to the Seller in excess of $10,000;
(v) Contract or Contracts for the borrowing of money for a line of credit, or for a guarantee, pledge or undertaking of the indebtedness of any other person;
(vi) factoring agreement or agreement for the assignment of receivables;
(vii) Contract with respect to any Rights;
(viii) Contract for any capital expenditure involving future payments, which, together with future payments under all other existing Contracts for all capital projects are in excess of $50,000;
(ix) Contract limiting or restraining in any respect the Seller from engaging or competing in any lines of business or with any person;
(x) Contract requiring the Seller to loan money to any person in the future; or
(xi) any other Contract material to the operation of the business. As used in the Agreement, the term "Contract" includes any mortgage, indenture, agreement, license, contract, commitment or lease.
(b) Except as expressly may be otherwise set forth on Schedule 4.23, with respect to each of the Contracts listed on any Schedule to this Agreement, (i) such Contract is valid and enforceable against the Seller in accordance with its terms, except to the extent that such enforceability may be limited by applicable insolvency, bankruptcy, reorganization or similar laws affecting the enforcement of creditors' rights generally and by general equity principles, (ii) the Seller is in compliance with the provisions thereof in all material respects, (iii) no other party is in default in the performance, observance or fulfillment of any obligations, covenant or condition contained therein and (iv) no event has occurred which with or without the giving of notice or lapse of time, or both, would constitute a default thereunder by the Seller. Except as set forth on Schedule 4.23, the transactions as contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement will not (whether written or orali) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere result in the world automatic termination of any Contract listed on any Schedule to this Agreement; or providing for exclusivity in any business line, geographic area or otherwise;
(Cii) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising result in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect automatic amendment of any of the foregoing.
(ii) All terms of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material any such Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies ; or (Ciii) as would not be material give rise to a right in any party to unilaterally amend the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach terms of, or in receipt of any written claim of such material default or material breachterminate, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as Schedule 7.19 hereto (with paragraph references corresponding to those set forth on below) contains a true and complete list of each of the attached Schedule Kfollowing contracts (true and complete copies or, neither the Company nor if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto, have been delivered or made available to STH), to which HHTI or any of the Material HHTI Subsidiaries is a party to or bound by which any executory contract, lease, license or other agreement (whether written or oral) that involvesHHTI Hotel is bound:
(Ai) all contracts providing for the leasing or management of one or more of the HHTI Hotels or any portion of one or more of the HHTI Hotels;
(ii) all HHTI Franchise Agreements;
(iii) all material contracts providing for a commitment of employment or consultation services for a specified or unspecified term;
(iv) all contracts with any person containing any provision or covenant prohibiting or materially limiting the ability of HHTI or any of the HHTI Subsidiaries to engage in any business activity, hire employees, solicit customers or otherwise compete with any person;
(v) all partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) all notes, debentures, bonds and other evidence of HHTI Indebtedness;
(vii) all contracts relating to any business combination;
(viii) all contracts between or among HHTI or any of the HHTI Subsidiaries, on the one hand, and any of their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the terms of such contract, by or to HHTI or any of the HHTI Subsidiaries of more than $25,000 or aggregate payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except 100,000 that will not (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting be fully performed on or prior to the enforcement of creditors’ rights generallyEffective Time, (B) as limited expire by Laws relating their terms prior to the availability of specific performanceEffective Time, injunctive relief or other equitable remedies or (C) be cancelable by the Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of assets, advance booking contracts and banquet contracts.
(b) Each contract required to be disclosed on Schedule 7.19 is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and, except as would not be material to the Company and the Company Subsidiariesdisclosed on Schedule 7.19, taken as a whole); providedneither HHTI, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material HHTI Subsidiaries nor, to the knowledge of HHTI, any other party to such contract is in material violation, breach or default under any such contract (or in material breach of, with notice or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or both would be in violation, breach or default under any such contract), the giving effect of noticewhich, individually or bothin the aggregate, would could reasonably be expected to result in a material default, breach Material Adverse Effect.
(c) The HHTI Franchise Agreements disclosed on Schedule 7.19 constitute all of the franchise or similar agreements necessary to operate and manage the HHTI Hotels and neither HHTI nor any HHTI Subsidiary has received any notice or has any knowledge of an event of noncompliance, in each such case, by the Company default or any of the Material Subsidiaries termination or proposed termination under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersHHTI Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule KContracts Schedule, neither the Company nor any of the Material its Subsidiaries is a party to or nor bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesany:
(Ai) payments agreement relating to any acquisition or disposition by the Company and/or or such Subsidiary of any Material assets or properties or the operating business or capital stock of any other Person, or relating to any such prior acquisition to the extent the Company or any Subsidiary in excess of $3 million during has any remaining right, obligation or liability (whether fixed or contingent) thereunder, within the 12 month period ended on the Closing Datelast three years;
(Bii) collective bargaining agreement or contract with any labor union or trade organization;
(iii) contract establishing any joint ventures, partnerships or similar arrangements;
(iv) contract reflecting a settlement of any threatened or pending legal proceedings entered into within the last three years;
(v) contract (A) prohibiting or materially limiting the right of the Company or restricting of its Subsidiaries to compete in any line of business or to conduct business with any Person in any geographical area, (B) containing a most favored nation or similar provision in favor of any customer or counterparty, or (C) obligating the Company or any Material Subsidiary of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from freely engaging in a single party or sell any business product or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseservice exclusively to a single party;
(Cvi) Indebtedness involving liabilities Intellectual Property license or similar arrangement material to the operation of the Company and its Subsidiaries, except licenses to software that is generally commercially available;
(vii) stock purchase, stock option or similar plan;
(viii) written contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for fixed compensation in excess of $5 million100,000 per annum;
(Dix) other than arising in agreement or indenture relating to the Ordinary Course borrowing of Business, money or to placing a Lien on any joint venture, partnership material portion of the Company’s or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwiseany Subsidiary’s assets;
(Ex) “most favored nations” provisionsguaranty of any obligation for borrowed money;
(Fxi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other than arising in party, for which the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contractsannual rental exceeds $100,000;
(Gxii) a capital maintenance contractlease or agreement under which it is lessor of or permits any third party to hold or operate any property, keepwell real or similar agreement pursuant to personal, for which any Person has agreed to contribute capital the annual rental exceeds $250,000;
(xiii) contract or surplus to group of related contracts with the same party for the purchase by the Company or any Material Subsidiary of products or any capital maintenance services, under which the undelivered balance of such products and services has a selling price in excess of $500,000 as of the date hereof; or
(xiv) contract or similar agreement pursuant to which group of related contracts with the same party for the sale by the Company or any Material Subsidiary of products or services under which the undelivered balance of such products or services has agreed to contribute capital or surplus to any Person or guarantee the obligations a sales price in excess of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any $1,000,000 as of the foregoingdate hereof.
(iib) All Parent and Merger Sub have been given access to a true and correct copy of the contracts, agreements, instruments and documents set forth all written contracts which are referred to on the attached Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(i) Neither the Company nor any Subsidiary is in default under any contract listed, or required to be listed, on the Contracts Schedule K (each, a “Material Contract” and, collectively, the “Material Contracts”) are and (ii) to the Company’s Knowledge, as of the date hereof, the other party to each of the Material Contracts is not in default thereunder. Except as listed on the Contracts Schedule, each Material Contract is legal and in full force and effect and is valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge Company’s Knowledge, the other party thereto. As of the date hereof, no party to any Material Contract has given any written notice, or to the Company’s Knowledge, each any notice (whether or not written) of termination or cancellation of any Material Contract or that it intends to seek to terminate or cancel any Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
(d) Except as set forth on the Authorization Schedule, there are no “change of control” or similar provisions or any obligations arising under any Material Contract which are created, accelerated or triggered by the execution, delivery or performance of this Agreement or the consummation of the Merger or the other party thereto in accordance with their respective terms transactions contemplated hereby, and (except ii) none of the execution, delivery or performance of this Agreement or the consummation of the Merger or the other transactions contemplated herby will, under the terms, conditions or provisions of any Company Material Contract (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generallyresult in any material increase or decrease in any payment or change in any material term or condition, (B) as limited by Laws relating give rise to the availability any right of specific performanceamendment, injunctive relief termination, cancellation or other equitable remedies acceleration of any right or obligation or to a loss of benefit, or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include grant any contract that will be fully performed repayment or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect repurchase rights to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersPerson.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreementdisclosed in Section 3.15, Section 3.16, Section 3.17 or Section 3.20 of the Prior Purchase Agreements or as set forth on the attached Schedule KCompany Disclosure Schedule, neither the Company nor any of the Material Subsidiaries Company Subsidiary is a party to any of the following contracts, agreements or bound by any executory contractarrangements, lease, license or other agreement (whether written or oraloral (the "Company Material Agreements"):
(i) pension, profit-sharing, retirement, hospitalization, group insurance, medical expense reimbursement, death benefit, disability, deferred compensation, fringe benefit, stock option, stock purchase, stock bonus, incentive compensation, bonus, or any other employee benefit plan;
(ii) collective bargaining agreement or other contract with any labor union, or any contract, whether written or oral (excluding any oral contract that involves:is terminable-at-will under the laws of the relevant jurisdiction), for the employment of any officer, individual employee, or other person or entity on a full-time, part-time, consulting or other basis, or any agreement relating to loans to officers, directors or affiliates;
(iii) contract or agreement related to the voting of the shares of the Company or any of its Subsidiaries or the election of directors of the Company or any Company Subsidiary;
(iv) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging or otherwise placing a lien on any asset or group of assets of the Company or any Company Subsidiary other than in the ordinary course of business and consistent with past practice;
(v) guarantee of any obligation, except for guarantees of the obligations of wholly owned Subsidiaries, other than in the ordinary course of business and consistent with past practice;
(vi) contract or agreement (A) payments by prohibiting it from freely engaging or competing in any business anywhere in the world, or (B) entered into, other than in the ordinary course of business and consistent with past practice, restricting the right of the Company and/or or any Material Company Subsidiary to use or disclose any information in its possession;
(vii) partnership, joint venture, or other similar contract arrangement;
(viii) underwriting, agency, dealer, sales representative or other similar agreements relating to public offerings or private placements of partnership interests or insurance products, in each case, other than in the ordinary course of business;
(ix) any contract relating to the acquisition or disposition of any business of the Company or a Company Subsidiary (whether by merger, sale of stock, sale of assets or otherwise) entered into after August 1, 1997;
(x) any other contract which creates future payment obligations in excess of $3 million during 100,000 in the 12 month period ended on aggregate and which by its terms does not terminate or is not terminable without penalty upon notice of 90 days or less other than loan commitments made in the Closing Date;
(B) prohibiting or materially limiting or restricting ordinary course of business which the Company reasonably anticipates will be funded through loan participations under which third parties other than the Company or any Material Company Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractwould fulfill such future payment obligations; or
(Hxi) any material amendment, modification or supplement other contract not entered into in respect the ordinary course of any of business that is Material to the foregoingCompany.
(iib) All The Company has furnished to Parent true and complete copies of each of the contracts, agreements, instruments and documents set forth on the attached Schedule K Company Material Agreements (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closingoral, a written summary of such Company Material Agreements).
(c) Except as disclosed in Section 3.15 of or prior to such Additional Closing. Neither the Company nor any Disclosure Schedule:
(i) The Company and each of the Material its Subsidiaries is have performed all material obligations required to be performed by them and are not in material default under or in material breach of, or of nor in receipt of any written claim of such material default or material breach, breach under any Company Material Contract. No Agreement to which either is a party or is bound thereby;
(ii) to the knowledge of the Company, no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in such a material defaultdefault or breach under any Company Material Agreement.
(d) To the knowledge of the Company, breach or event no employee of noncompliance, in each such case, by the Company or any of Company Subsidiary is a party to a contract other than with the Material Subsidiaries under Company or a Company Subsidiary (A) prohibiting him or her from freely engaging or competing in any such Material Contract. There are no outstanding, pendingbusiness anywhere in the world, or (B) entered into other than in the ordinary course of business and consistent with past practice, restricting his or her right to the Knowledge of the Company, threatened material disputes with respect to use or disclose any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersinformation in his or her possession.
Appears in 1 contract
Contracts and Commitments. (a) Except as disclosed on Schedule 2.13, neither of the Sellers is a party to any of the following (collectively, the "Material Contracts"):
(i) Except as expressly contemplated contract, agreement, purchase order or other commitment for the purchase, sale or provision to or by this AgreementSeller of goods, property or services in any one instance for an amount in excess of Twenty-Five Thousand Dollars $25,000.00;
(ii) pension, profit sharing, stock option, employee stock purchase or other plan providing for deferred compensation or other employee benefit plan, or any contract with any labor union (collectively, the Prior Purchase Agreements "Benefit Plans");
(iii) oral or written contract for the employment of any officer, individual employee, or other person or entity on a full-time, part-time, consulting or other basis, or agreement relating to loans to officers, directors or affiliates, other than advances in the ordinary course of business;
(iv) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging or otherwise placing a lien on any material asset or material group of assets of Sellers, or either of them;
(v) oral or written direct or indirect guarantee of any obligation;
(vi) lease, license or agreement under which it is lessee of, licensee of or holds or operates any property, real or personal, tangible or intangible, owned by any other party, except for any lease of personal property the existence of which was disclosed on December 31, 1993 Financial Statements;
(vii) lease, license or agreement under which it is lessor of, licensor of or permits any third party to hold or operate any property, real or personal, tangible or intangible, owned or controlled by it (except as disclosed in the land records pertaining to C Associates' ownership of the business premises);
(viii) contract or agreement restricting the ability of the Sellers to conduct any type of lawful business or activity anywhere in the world.
(b) Except as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally2.13(b), (Bi) as limited Sellers have performed in all material respects all obligations required to be performed by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would them and are not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or of nor in receipt of any written claim of such material default or material breach, breach under any Material Contract. No agreement referred to in Section 2.13(a), (ii) no event has occurred whichwhich with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance under any such agreement, (iii) the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby will not, with the passage of time or the giving of notice, or both, would result in a material default, breach breach, or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries noncompliance under any such Material Contractagreement, (iv) Sellers do not have any knowledge of any breach or anticipated breach by any other party to such agreements, and (v) Sellers are not a party to any material contract or commitment for the purchase of goods or services at a rate currently above market prices.
(c) Purchaser shall, prior to the Closing Date, be provided with an opportunity to review a true and correct copy of each of the written contracts which are referred to in Section 2.13(a), together with all amendments, waivers or other changes thereto.
(d) Schedule 2.13(d) contains a true and complete list of the five (5) largest suppliers to Cour▇▇▇▇ ▇▇▇ a list of the fifteen (15) largest customers of Cour▇▇▇▇, ▇▇ch during calendar year 1993. There are no outstanding, pendingCour▇▇▇▇ ▇▇▇ll also set out on such schedule (i) the names of customers and/or suppliers included on such list who, or which, in the reasonable opinion of Cour▇▇▇▇, ▇▇ve determined to discontinue all future business relationships with Cour▇▇▇▇ ▇▇ (ii) the Knowledge occurrence of any other event which would have a material adverse effect on its business relationship with the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersSellers.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 6.3(a) lists the following Contracts to which any Russian Venture is a party, or by which any of such Russian Venture's Assets are bound:
(i) Except as expressly contemplated by this Agreementany labor or union contracts;
(ii) any Contracts to employ or terminate or pay severance to Personnel and any other Contracts with present or former officers, the Prior Purchase Agreements directors or as set forth on the attached Schedule K, neither the Company nor shareholders or other personnel or any of any Russian Venture or any of their respective affiliates or family members; and
(iii) any written arrangement with any of its directors, officers, shareholders or employees, any affiliate thereof or any member of any such person's immediate family (x) providing for the Material Subsidiaries furnishing of material services by, (y) providing for the rental of material real or personal property from, or (z) otherwise requiring material payments to (other than for services as officers, directors or employees of any Russian Venture), any such Person or any corporation, partnership, trust or other entity in which any such Person has a substantial interest as a shareholder, officer, director, trustee or partner.
(b) None of the Russian Ventures is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involvesof the Contracts listed below:
(Ai) payments by any promissory notes, loans, agreements with respect to indebtedness of borrowed money, indentures with respect to indebtedness of borrowed money, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, individually in excess of or in the Company and/or any Material Subsidiary aggregate in excess of $3 million during 25,000, whether any Russian Venture shall be the 12 month period ended on borrower, lender or guarantor thereunder or whereby any Assets are pledged (excluding credit provided by the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising Russian Venture in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing Business to purchasers of profits or otherwiseits products);
(Eii) “most favored nations” provisions;
any written arrangement (For group of related written arrangements) other than arising in the Ordinary Course of Business, material thirdconcerning non-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractcompetition; or
(Hiii) any other written arrangement (or group of related written arrangements) under which the consequences of a Default or termination would have a Material Adverse Effect. The Sellers have delivered to Buyer true, correct and complete, in all material amendmentrespects, modification or supplement copies of each written Contract listed in respect Schedule 6.3(a) to which a Russian Venture is a party, including all amendments and supplements thereto, and have included as part of Schedule 6.3(a) a brief summary of any of the foregoing.
(ii) such oral contracts, agreements or other arrangements and any written proposals to enter into any such Contracts. All of the contracts, agreements, instruments and documents Contracts set forth on the attached in Schedule K (each, a “Material Contract”6.3(a) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (terms, except (A) as such enforceability may be limited by applicable (i) bankruptcy, insolvencymoratorium, reorganization, moratorium and other Laws of general application similar laws affecting the enforcement of creditors’ ' rights generally, and (Bii) as limited by Laws relating to the availability general principles of specific performanceequity, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance regardless of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result whether asserted in a material default, breach proceeding in equity or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersat law.
Appears in 1 contract
Contracts and Commitments. (a) Except for this Agreement and the Escrow Agreement, Schedule 3.6(a) sets forth a complete list of each (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Contract to which the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or orala “Company Contract”) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising not made in the Ordinary Course of Business; (ii) Company Contract relating to the borrowing of money in excess of $250,000 or Guarantee of any such obligation, together with any hedge agreements; (iii) Company Contracts concerning completed or pending transfers of Mortgage Loans or servicing rights by the Company to another Person, including any Company Contract containing on-going indemnification obligations; (iv) Company Contract that by its terms limits the payment of dividends or distributions by the Company or that by its terms either requires the Company to do business with the contract party on an exclusive basis or restricts or limits the Company from owning, managing or operating any business or in any geographical location (including non-competition agreements); (v) Company Contract that is a joint venture, venture or partnership agreement; (vi) Company Contract that grants any right of first refusal or other cooperative arrangement right of first offer or similar arrangement involving right to third parties or that limits or purports to limit the ability of the Company in any material respect to pledge, sell, transfer or otherwise dispose of any material amounts of assets or business; (vii) Company Contract providing for any material future payments that are conditioned, in whole or in part, on a sharing change of profits control with respect to the Company; (viii) material agency, broker, sale representative, marketing, referral, affinity, lead-generation or otherwise;
similar Company Contract; (Eix) Company Contract that contains a “most favored nationsnation” provisions;
clause obligating the Company to change the material terms and conditions of such Contract based on better terms or conditions provided to other parties in similar contracts; (Fx) Company Contract relating to (A) any merger or business combination concerning the Company, (B) the acquisition by the Company of all or substantially all of the assets of any other Person, or (C) the disposition by the Company of all or substantially all of its assets to any other Person; (xi) written Company Contract with any manager, director, officer, employee, shareholder, or Affiliate of the Company involving payments or compensation in excess of $100,000 per year during each year from January 1, 2012 through December 31, 2014, in each case, that is currently in effect; (xii) other than arising Company Contract involving aggregate annual expenditures or revenues in excess of $250,000; and (xiii) Servicing Agreements (the Ordinary Course contracts of Businessthe type covered in clauses (i) through (xiii), material third-party administration the “Material Contracts”). The Company has provided, or otherwise made available, to Buyer true and correct copies of all Material Contracts. The Company has no oral employment agreements or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contractcompensation arrangements with any manager, keepwell director, officer, employee or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any shareholder of the foregoingCompany.
(iib) All of the contracts, agreements, instruments and documents Except as set forth in Schedule 3.6(b), (i) each Material Contract is valid and binding on the attached Schedule K (each, a “Material Contract”) are valid, binding Company and enforceable against the Company or the respective Material Subsidiary, as applicable, in full force and effect and, to the Knowledge of the Company, each is valid and binding on the other party thereto in accordance with their respective terms parties thereto; and (except (Aii) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries(and, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened any counterparty thereto) has performed in all material disputes with respect respects all obligations required to any such be performed by it to date under each Material Contract. TrueThe Company is not in default under any Material Contract, correct and complete copies of each Material Contract have been made available to the PurchasersKnowledge of the Company, there has not occurred any Event that, with the lapse of time or giving of notice or both, would constitute such a default.
(c) The Company has provided a schedule to Buyer showing all indemnification payments made by the Company during the past three (3) years.
Appears in 1 contract
Contracts and Commitments. (i) Except 15.1 Since its incorporation, the Company has carried on its business in the ordinary course and, save as expressly mentioned in or as contemplated by this Agreement, the Prior Purchase Agreements Company has not entered into any transaction or as set forth incurred any material liabilities except in the ordinary course of its day-to-day business and on an arm’s length basis for full value.
15.2 There is no now outstanding nor, will there be outstanding at Completion with respect to the attached Schedule K, neither the Company nor Company:
(1) any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written by way of guarantee, indemnity, warranty, representation or oralotherwise) that involves:
(A) payments by under which the Company and/or is under any Material Subsidiary actual or contingent material liability in excess respect of $3 million during the 12 month period ended on obligations of any person other than the Closing DateCompany;
(B2) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company is a party which is of a long-term (i.e. more than one year) and non-trading nature or contains any unusual or unduly onerous provision disclosure of which could reasonably be expected to influence the decision of ▇▇▇▇▇▇▇ in being issued and allotted with any or all of the Subscription Shares;
(3) any sale or purchase option or similar agreement affecting any assets owned or used by the Company;
(4) any material agreement in excess of US$10,000 (or its equivalent in any other currency) entered into by the Company otherwise than by way of bargain at arm’s length; and
(5) any management agreements, joint venture agreements, agency agreements, processing agreements, construction agreements or any Material Subsidiary form of agreement whatsoever which entitles any person to bind the Company contractually, to settle, negotiate or compromise any accounts or claims or to collect, receive or share in any balances or sums payable to the Company save in the ordinary course of business.
15.3 The Company has agreed not received any formal or informal notice to contribute capital or surplus repay under any agreement relating to any Person borrowing (or guarantee indebtedness in the obligations nature of borrowing) which is repayable on demand.
15.4 The Company is not under any obligation, or party to any contract, which cannot readily be fulfilled or performed by it on time and without undue or unusual expenditure of money or effort and which is material in the context of the Company’s business as a whole.
15.5 No party to any contractually binding agreement or arrangement with or under an obligation to the Company is in default under it, being a default which would be material in the context of the Company’s financial or trading position and there are no circumstances likely to give rise to such a default.
15.6 The Company is not in default under any agreement or obligation to which it is party or in respect of any Person under other obligations or restrictions binding upon it.
15.7 There are no outstanding contracts, engagements or liabilities, whether quantified or disputed, save for those entered into in the ordinary course of the Company’s day to day business operations.
15.8 With respect to the Company, there are no:
(1) contractual arrangements between the Company and any insurance contractparty (including but not limited to financiers of the Company) which will or may be legally terminated as a result of the execution or completion of this Agreement;
(2) liabilities for any statutory or governmental levy or charge;
(3) powers of attorney or other authorities (express or implied) which are still outstanding or effective to or in favour of any person to enter into any contract or commitment or to do anything on its behalf;
(4) agreements or arrangements entered into by it otherwise than by way of bargain at arm’s length;
(5) contracts which are unusual or of a long-term nature or involving or which may involve obligations on it of a nature or magnitude calling for special mention or which cannot be fulfilled or performed on time or without undue or unusual expenditure of money or effort; or
(H6) any material amendment, modification contracts or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company arrangements between itself and the Company Subsidiaries, taken as a whole); provided, that, for parties hereto or their associates other than contracts in the avoidance ordinary course of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior their day to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersday trading operations.
Appears in 1 contract
Sources: Agreement for the Subscription of Class a Preferred Shares (Rich Sparkle Holdings LTD)
Contracts and Commitments. (a) The Disclosure Schedule sets forth a list (as of the date of this Agreement) of all Company Agreements (i) Except as expressly contemplated by this Agreement, material to the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any conduct of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess business of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, thatand having, as to any one such Company Agreement, a value to the Company in excess of $100,000, or (ii) which represent an obligation or liability of the Company or any Company Subsidiary for the avoidance payment of doubtan amount in excess of $50,000 per year, “Material Contracts” shall not include other than those terminable on 30 days’ or less notice by the Company or Company Subsidiary without penalty or other financial obligation or (iii)(A) under which the Company or any contract that will be fully performed Company Subsidiary has advanced or satisfied as loaned any Person (including any employee, officer, director or Affiliate) an amount in excess of $10,000, (B) under which the Company or prior to the Initial Closing, or, if this Agreement is being executed and delivered any Company Subsidiary has granted any right of first refusal or similar right in favor of any third party with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any material portion of the Material Subsidiaries is in material default under Company’s or in material breach ofany Company Subsidiary’s properties or assets, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, (C) containing non-compete covenants by the Company or any Company Subsidiary (collectively, the “Material Company Agreements”). The Company has made available to Parent a correct and complete copy of each Material Company Agreement listed in the Disclosure Schedule.
(b) Except as set forth in the Disclosure Schedule, (i) each of the Material Subsidiaries under any such Material Contract. There Company Agreements are valid, binding and enforceable in accordance with their terms, subject to general equity principles, and are in full force and effect, except as the same may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally, (ii) there are no outstandingexisting defaults by the Company or any Company Subsidiary thereunder, pendingand (iii) no event of default has occurred which (whether with or without notice, lapse of time or to the Knowledge happening or occurrence of any other event) would constitute a default by the CompanyCompany or any Company Subsidiary thereunder, threatened material disputes except, with respect to clauses (ii) and (iii) of this Section 3.20(b), where such default or event of default, individually or in the aggregate with any such other defaults or events of default, does not constitute and could not reasonably be expected to have a Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersAdverse Effect.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Neither the Company nor any of the Material its Subsidiaries is a party to to, is bound or bound by affected by, or receives any executory contractbenefits under, leaseany agreement, license contract or other agreement legally binding understanding, whether oral or written: (whether written or orali) that involves:
providing for (A) aggregate noncontingent payments by or to the Company and/or or any Material Subsidiary of its Subsidiaries in excess of $3 million during the 12 month period ended on the Closing Date;
100,000 or (B) prohibiting potential payments by or materially limiting or restricting to the Company or any Material Subsidiary from freely engaging of its Subsidiaries reasonably expected to exceed $250,000; (ii) limiting the freedom of the Company to engage in any line of business or competing anywhere in the world sell, supply or providing for exclusivity distribute any service or product, or to compete with any entity or to conduct business in any business linegeography, geographic area or otherwise;
to hire any individual or group of individuals; (Ciii) Indebtedness involving liabilities that after the Effective Time would have the effect of limiting in excess any respect the freedom of $5 million;
Parent or any of its Subsidiaries (D) other than arising the Company and its Subsidiaries) to engage in the Ordinary Course any line of Businessbusiness or sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iv) involving any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
arrangement; (Ev) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
borrowing of money or the guarantee of any such obligation (Gother than trade payables and instruments relating to transactions entered into in the ordinary course of business); (vi) a capital maintenance contractcontaining severance or termination pay Liabilities related to termination of employment; (vii) related to product supply, keepwell manufacturing, distribution or similar agreement development; (viii) relating to the acquisition, transfer, development or sharing of any Intellectual Property (except for any Company contracts pursuant to which (1) any Person has agreed to contribute capital or surplus Intellectual Property is licensed to the Company or any Material Subsidiary of its Subsidiaries under any third party software license generally available to the public or (2) any material Intellectual Property is licensed by the Company or any capital maintenance contract of its Subsidiaries in the ordinary course of business pursuant to which the Company's Software is licensed to a third-party customer, (3) commercially available over-the-counter "shrink-wrap" licenses are used by the Company or any of its Subsidiaries in the operation of its business, or (4) non-negotiated licenses of third party Intellectual Property are embedded in equipment or fixtures and are used by the Company or any of its Subsidiaries for internal purposes only); (ix) which provide for indemnification by the Company of any officer, director or employee of the Company; (x) containing "standstill" or similar agreement provisions to which the Company is subject and restricted; (xi) pursuant to which the Company or any Material Subsidiary of the Company has agreed to contribute capital any obligations or surplus to any Person liabilities (whether absolute, accrued, contingent or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendmentotherwise), modification as guarantor, surety, co-signer, endorser, co-maker, or supplement otherwise in respect of any obligation of any Person, or any capital maintenance, keep-well or similar agreements or arrangements in any such case which, individually is in excess of $100,000; (xiii) involving the lease of real property with aggregate annual rent payments in excess of $100,000; (xiii) to which the Company or any Subsidiary of the foregoingCompany is a party and pursuant to which any person is authorized to use or has an option to obtain the right to use any material Company Intellectual Property, including any material license or sublicense of Company Intellectual Property; (xiv) pursuant to which the Company or any of its Subsidiaries is authorized to use any material Intellectual Property of any Third Party (except for any Company contracts pursuant to which (1) any Intellectual Property is licensed to the Company or any of its Subsidiaries under any third party software license generally available to the public or (2) licenses in which either the aggregate noncontingent payments by the Company are not in excess of $100,000 or the potential payment to or by the Company is not expected to exceed $250,000); or (xv) otherwise required to be filed as an exhibit to an Annual Report on Form 10-K, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract of the type described in the immediately preceding sentence is referred to herein as a "Company Material Contract." The Company has heretofore made available to Parent a complete and correct copy of each Company Material Contract, including any amendments or modifications thereto.
(iib) All of the contracts, agreements, instruments Each Company Material Contract is valid and documents set forth binding on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, its Subsidiary party thereto and, to the Knowledge of the Company, each other party thereto thereto, and is in full force and effect, and is enforceable against the Company in accordance with their respective its terms and, to the Knowledge of the Company, against each other party thereto (except (A) as limited by applicable bankruptcyin each case, insolvency, reorganization, moratorium and other Laws subject to laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to bankruptcy, insolvency and the availability relief of debtors and rules of law governing specific performance, injunctive relief or relieve and other equitable remedies or (C) remedies), and the Company and each of its Subsidiaries have performed in all material respects all obligations required to be performed by them under each Company Material Contract and, to the Knowledge of the Company, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not reasonably be material expected to the have a Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional ClosingAdverse Effect. Neither the Company nor any of the Material its Subsidiaries is in material default under or in material breach knows of, or in receipt of has received notice of, any written claim of such material violation or default under (or material breach, under any Material Contract. No event has occurred which, condition that with the passage of time or the giving of notice, or both, would result in cause such a material default, breach violation of or event of noncompliance, in each such case, default under) any Company Material Contract or any other agreement or contract to which it is a party or by the Company which it or any of the its properties or assets is bound, except for violations or defaults that would not reasonably be expected to have a Company Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to Adverse Effect.
(c) To the Knowledge of the Company, threatened no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time), would reasonably be expected to: (a) result in a material disputes with respect to violation or breach of any such provision of any Company Material Contract. True; (b) give any Person the right to declare a default or exercise any remedy under any Company Material Contract; (c) give any person the right to receive or require a material rebate, correct and complete copies chargeback, penalty or change in delivery schedule under any Company Material Contract; (d) give any Person the right to accelerate the maturity or performance of any Company Material Contract; or (e) give any Person the right to cancel terminate or modify any Company Material Contract, in each case, in a manner that would reasonably be expected to have a Company Material Contract have been made available to the PurchasersAdverse Effect.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on Schedule 3.9, other than the attached Schedule KTransaction Documents, neither the Company nor any of the Material Subsidiaries is not a party to or bound by any executory contractby, leaseand the Purchased Assets are not bound by, license or other agreement (whether written or oral) that involves:, any (such Contracts, the “Material Contracts”):
(Ai) payments by the Company and/or employment, severance, change in control, consulting or similar Contract (including any Material Subsidiary collective bargaining agreement) with or in excess respect of $3 million during the 12 month period ended on the Closing Dateany Business Employee;
(Bii) prohibiting Contract relating to Indebtedness or materially limiting to mortgaging, pledging or restricting otherwise placing a Lien on any of the Purchased Assets;
(iii) royalty Contract pursuant to which the Company pays an unaffiliated third party;
(iv) any contract or agreement involving the sale of any assets of the Company, or the acquisition of any assets of any Person by the Company, in any business combination transaction (whether by merger, sale of stock, sale of assets or otherwise);
(v) guaranty of any obligation, other than endorsements made for collection;
(vi) Contract with a Material Customer or Material Supplier;
(vii) Contract under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments, or under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(viii) Contract for co-packaging;
(ix) Contract which restricts the business activities of the Company or any Material Subsidiary from freely engaging limits the freedom of the Company to engage in any line of business or competing anywhere in the world or providing for exclusivity in ability of the Company to compete with any business line, geographic area or otherwisePerson;
(Cx) Indebtedness involving liabilities in excess Contract relating to the distribution, marketing or sales of $5 millionthe Company’s products;
(Dxi) Contract for warehouse management;
(xii) Contract for movement of freight;
(xiii) “take-or-pay” or “requirements” Contract;
(xiv) Contract to retain or assume any liabilities or obligations of any third-party under Environmental Law or relating to Hazardous Materials;
(xv) IP Contracts material to the Business other than arising employment agreements or agreements with independent contractors or consultants entered into in the Ordinary Course of BusinessBusiness on the Company’s standard form, any joint venture, partnership copies of which have been provided or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwiseotherwise made available to Buyer;
(Exvi) “most favored nations” provisionsany Contract having a value per contract, or involving payments by or to the Company, of at least $10,000 in the aggregate;
(Fxvii) any other than arising in the Ordinary Course of Business, Contract that is otherwise material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contractCompany; or
(Hxviii) any material amendment, waiver or modification or supplement in respect of to any of the foregoing.
(iib) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against Neither the Company or the respective Material Subsidiary, as applicable, andnor, to the Knowledge of the Company, each any other party thereto to any Material Contract has been in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief material breach or other equitable remedies or (C) as would not be material to the default under any Material Contract. The Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully has performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any all of the obligations required to be performed by it in connection with the Material Subsidiaries Contracts and is not in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No , and no event has occurred which, which with the passage of time or the giving of notice, notice or both, both would result in a material defaultdefault or breach thereunder. Each Material Contract is legal, valid, binding, existing, enforceable and in full force and effect (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and to general equitable principles, including specific performance and injunctive and other forms of equitable relief). The Company has not given to, or received from, any other party to any Material Contract, any notice or communication (whether written or oral) regarding any actual or alleged breach of or event of noncompliance, in each such case, default under any Material Contract by the Company or any of the Material Subsidiaries under any other party to such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct True and complete copies of each of the Material Contract Contracts have been made available delivered to the PurchasersBuyer.
Appears in 1 contract
Contracts and Commitments. (ia) Except Schedule 4.09(a) sets forth a list as expressly contemplated by of the date of this Agreement, Agreement of each of the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor following types of contracts to which any of the Material Company or its Subsidiaries is a party to or bound by any executory contract(each, leasea “Significant Contract” and, license collectively, the “Significant Contracts”):
(i) collective bargaining agreement or other agreement with a labor union, works counsel or other employee representative body;
(ii) except as listed on Schedule 4.12(a) and except for Foreign Benefit Plans sponsored by a Governmental Body, bonus, pension, profit sharing, retirement or any other plan providing for incentive equity or equity-like compensation;
(iii) stock purchase plan, stock option plan or similar plan;
(iv) contract for the employment of any officer, or any individual employee or other individual on a full-time, part-time or consulting basis, providing for fixed compensation in excess of $150,000 per annum, or any contract with an employee, director or individual independent contractor, providing for severance (except for any employee employed outside the United States with a severance entitlement that does not exceed that required by applicable Law);
(v) any contract with an employee or independent contractor that provides for severance, retention, change-in-control or similar payments or benefits that will accelerate, accrue or become payable as a result of, or in connection with (whether written alone or oralin connection with any other event, including by reason of termination of employment or engagement following the Closing Date), the execution and delivery of this Agreement or the consummation of the Merger;
(vi) that involves:
any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts relating to the borrowing of money or extension of credit (whether incurred, assumed, guaranteed or secured by any asset) other than (A) accounts receivables and payables (including with respect to employee purchase cards for transactions entered into in the ordinary course of business) and (B) loans to or intercompany indebtedness between Subsidiaries;
(vii) lease or other contract under which it is lessee of, or holds or operates any real or personal property owned by any other party, except, in the case of personal property, for which the annual rental is less than $500,000;
(viii) lease or other contract under which it is lessor of or permits any third party to hold or operate any property, real or personal (excluding any licenses granted by the Company to customers or partners for the use of Company Software or services);
(ix) any contract containing a covenant not to compete granted by the Company or any of its Subsidiaries in favor of a third party or that obligates the Company or any of its Subsidiaries to do business with any Person on an exclusive basis;
(x) any contract entered into during the five-year period ending on the date hereof relating to the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line or the capital stock of any other Person, in each case (A) for consideration in excess of $500,000 or the equivalent in other currencies or (B) pursuant to which any liabilities or obligations of the Company or its Subsidiaries remain outstanding;
(xi) contract or group of related contracts with the same party for the purchase of products or services that provide for annual payments by the Company and/or or any Material Subsidiary of its Subsidiaries in excess of $3 million 500,000 during the 12 month period ended on the Closing Date2014 calendar year;
(Bxii) prohibiting contract or materially limiting group of related contracts with the same party for the sale of products or restricting services that provide for annual payments to the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities of its Subsidiaries in excess of $5 million500,000 during the 2014 calendar year;
(Dxiii) contracts under which the Company or any of its Subsidiaries is or may be obligated to indemnify, defend or hold harmless any current or former director or officers of the Company or any of its Subsidiaries;
(xiv) any contract that involves the settlement or compromise of any material liability pursuant to which any liabilities or obligations of the Company or its Subsidiaries remain outstanding;
(xv) any contract that grants a power of attorney or similar grant of agency to any third party (other than arising with regard to filing franchise, Tax or Intellectual Property matters with Governmental Bodies on the Company’s behalf in the Ordinary Course ordinary course of Business, business); or
(xvi) any contract that involves any joint venture, partnership or other cooperative arrangement similar arrangement, except for agreements with channel partners or technology alliance partners (or similar arrangement involving a sharing of profits or otherwise;
(Earrangements) “most favored nations” provisions;
(F) other than arising entered into in the Ordinary Course ordinary course of Businessbusiness. Except as disclosed in the Disclosure Schedules, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(Ga) each Significant Contract is a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to valid obligation of the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which its Subsidiaries, as the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendmentcase may be, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and is enforceable against the Company or the respective Material Subsidiaryits Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (its terms, except (A) as enforceability may be limited by applicable bankruptcybankruptcy Laws, insolvency, reorganization, moratorium and other similar Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to and general principles of equity affecting the availability of specific performance, injunctive relief or performance and other equitable remedies or and (Cb) as would not be material to the Company and the Company or one of its Subsidiaries, taken as a whole); providedthe case may be, that, for has performed all material obligations required to be performed by it to date under the avoidance of doubt, “Material Contracts” shall Significant Contracts and is not include any contract that will be fully performed (with or satisfied as of or prior to without the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or the giving of notice, or both, would result ) in a material default, breach or event of noncompliancedefault in any material respect thereunder. To the Company’s Knowledge, in each such case, by the Company or any none of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect other parties to any such Material Contract. TrueSignificant Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder.
(b) Parent has been given access to a true and correct and complete copies copy of each Material Contract have been made available to the Purchasersall written Significant Contracts, together with all material amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Merger Agreement (Belden Inc.)
Contracts and Commitments. (a) SCHEDULE 4.6(a) sets forth a complete and accurate list of Industrial Power Transmission Contracts in the following categories (collectively, the "MATERIAL CONTRACTS"):
(i) Except all employment contracts and severance agreements, including, without limitation, contracts (A) to employ or terminate executive officers or other personnel of the Industrial Power Transmission Business or (B) that will result in the payment by, or the creation of any Liability to pay on behalf of Buyer, the Sellers, the Sold Subsidiary or the Spanish Subsidiary any severance, termination, "golden parachute," or other similar payments to any present or former employee of the Industrial Power Transmission Business following termination of employment or otherwise as expressly a result of the consummation of the transactions contemplated by this Agreement;
(ii) all franchise, license, technical assistance, commission, consulting, agency or advertising contracts related to the Industrial Power Transmission Assets or the Industrial Power Transmission Business involving the payment of more than $50,000 annually and which are not cancelable without penalty on thirty (30) calendar days notice;
(iii) all labor or union contracts;
(iv) all contracts or commitments relating to commission arrangements with others;
(v) all promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, individually in excess of or in the aggregate in excess of $100,000, whether a Seller, the Prior Purchase Agreements Sold Subsidiary or the Spanish Subsidiary shall be the borrower, lender or guarantor thereunder or whereby any Industrial Power Transmission Assets are pledged (excluding credit provided by a Seller, the Sold Subsidiary or the Spanish Subsidiary in the ordinary course of business to purchasers of its products), it being agreed and understood by the parties that all obligations under such instruments shall constitute Retained Liabilities;
(vi) any agreement concerning confidentiality or non-competition;
(vii) all purchase, supply, distribution and sales contracts (including each Existing Supply Agreement) which involve payments in excess of $50,000 annually and which are not cancelable without penalty on thirty (30) calendar days notice;
(viii) any contract between any Seller, the Sold Subsidiary or the Spanish Subsidiary and any affiliate thereof;
(ix) any service contract affecting any of the Industrial Power Transmission Assets having an annual service charge in excess of $50,000 and an unexpired term as of the Closing Date in excess of 90 days;
(x) any lease or sublease that provides for annual rent in excess of $50,000;
(xi) any contract for the purchase, sale or removal of electricity, gas, water, telephone, coal, sewage, power or utility service, other than such contracts with local utilities entered into in the ordinary course of business;
(xii) any contract or agreement involving the electronic exchange of information and amounts in excess of $50,000 annually; and
(xiii) any other contract involving payments in excess of $100,000 annually.
(b) Except as set forth on the attached Schedule K, neither the Company nor any SCHEDULE 4.6(b) (i) all of the Material Subsidiaries is material Industrial Power Transmission Contracts are in full force and effect and constitute legal, valid and binding obligations of the Sellers, the Sold Subsidiary and the Spanish Subsidiary to the extent a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, thereto and, to the Knowledge knowledge of the CompanySellers, each the other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generallyparties thereto, (Bii) as limited by Laws relating to each of the availability of specific performanceSellers, injunctive relief or other equitable remedies or (C) as would not be material to the Company Sold Subsidiary and the Company SubsidiariesSpanish Subsidiary has fulfilled, or taken as all action necessary to enable it to fulfill when due, all of its obligations under each such Industrial Power Transmission Contract to which it is a whole); providedparty and (iii) none of the Sellers, that, for the avoidance of doubt, “Material Contracts” shall not include Sold Subsidiary or the Spanish Subsidiary is in default in any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with material respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor under any of the Material Subsidiaries is in material default under Industrial Power Transmission Contracts, and (iv) no event, occurrence or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred condition exists which, with the passage lapse of time or time, the giving of notice, notice or both, would result become a default in a any material defaultrespect by any Seller, breach the Sold Subsidiary or event the Spanish Subsidiary. None of noncompliancethe Sellers, in each such case, by the Company Sold Subsidiary or the Spanish Subsidiary has received any written notice of cancellation or termination or any written notice of default under any Industrial Power Transmission Contract. The Sellers have furnished Buyer with true and correct copies of each of the Material Subsidiaries under any such Material Contract. There are no outstandingContracts set forth on SCHEDULE 4.6(a), pending, or to the Knowledge of the Company, threatened material disputes together with respect to any such Material Contract. True, correct all amendments and complete copies of each Material Contract have been made available to the Purchaserssupplements thereto.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this AgreementSchedule 2.12 contains a complete and accurate list of all contracts, the Prior Purchase Agreements or as set forth on the attached Schedule Kagreements, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement commitments and instruments (whether written or oral, contingent or otherwise) that involves:of ZoneCare of or concerning the following matters (the “Seller Agreements”):
(Ai) payments by the Company and/or lease, as lessee or lessor, or license, as licensee or licensor, of any Material Subsidiary in excess of $3 million during real or personal property (tangible or intangible) including the 12 month period ended on the Closing Datereal property leases;
(Bii) prohibiting the employment or materially engagement of any officer, director, manager, employee, consultant or agent, other than those terminable at will without severance obligation, and any covenant not to compete with any former employees;
(iii) any arrangement limiting the freedom of the Sellers or restricting the Company or any Material Subsidiary from freely engaging ZoneCare to compete in any manner in any line of business or competing anywhere in requiring the world Sellers or providing for exclusivity in ZoneCare to share profits other than commissions payable to employed sales persons;
(iv) any business linearrangement that could reasonably be anticipated to have a Material Adverse Effect on ZoneCare, geographic area financial or otherwise;
(Cv) Indebtedness involving liabilities any arrangement material to ZoneCare’s business, whether or not entered into in the ordinary course of business of ZoneCare;
(vi) any arrangement for the procurement of products and/or services from its network of vendors;
(vii) any power of attorney, whether limited or general, granted by ZoneCare;
(viii) any arrangement that requires performance for a period of more than 30 days or that requires aggregate payments in excess of $5 million25,000;
(Dix) Indebtedness or a guarantee of Indebtedness or any guarantee of any Liability or obligation of any other than arising in Person, or the Ordinary Course issuance of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing letters of profits or otherwisecredit;
(Ex) “most favored nations” provisionsmanagement, consulting or advisory arrangements;
(Fxi) other than arising in the Ordinary Course of Businessany profit sharing, material third-party administration membership interest option, membership interest purchase, membership interest appreciation, restricted membership interest, deferred compensation, severance, or other insurance policy administration relating to arrangement for the Insurance Contractsbenefit of its current or former directors, officers, managers or employees;
(Gxii) a capital maintenance contractthe acquisition or sale, keepwell directly or similar agreement pursuant to which indirectly (by merger or otherwise), or material assets (whether tangible or intangible), other than the purchase of inventory and services in the ordinary course of business consistent with past practice; and
(xiii) any Person has agreed to contribute capital or surplus to the Company relationship between ZoneCare or any Material Subsidiary person or entity affiliated with or related to ZoneCare or any capital maintenance contract officer, director or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingmanager thereof.
(iib) All The Sellers have delivered to Buyer true and complete copies of all of the contracts, agreements, instruments Seller Agreements. The Seller Agreements are valid and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto effective in accordance with their respective terms (except (A) as limited by applicable bankruptcyterms, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would there is not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor under any of the Material Subsidiaries is in material default under such Seller Agreements (i) any existing or in material breach of, or in receipt of any written claim of such claimed material default or breach by ZoneCare, or (ii) to the knowledge of the Sellers, any existing or claimed material breach, under default by any Material Contract. No other party or event has occurred which, which with the passage notice or lapse of time or the giving of noticetime, or both, would result in constitute a material defaultdefault by any such party. There is no actual or, breach or event of noncompliance, in each such case, by to the Company or any knowledge of the Material Subsidiaries under Sellers, threatened termination, cancellation or limitation of any such Material ContractSeller Agreements that would have a material adverse effect on ZoneCare, and its respective business, finances or otherwise. There are is no outstandingpending or threatened bankruptcy, pending, insolvency or to the Knowledge of the Company, threatened material disputes similar proceeding with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available other party to the PurchasersSeller Agreements.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 5.6 sets forth a complete and accurate list of Contracts in the following categories (collectively, the “Material Contracts”):
(i) Except all employment agreements and severance agreements, including, without limitation, agreements (A) to employ or terminate any Employee or (B) that will result in any severance, termination, “golden parachute,” or other similar payments to any present or former Employee following termination of employment or otherwise as expressly a result of the consummation of the transactions contemplated by this Agreement;
(ii) all franchise, the Prior Purchase Agreements license, technical assistance, commission, consulting, agency or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party advertising contracts related to or bound by any executory contractuseful in connection with the Acquired Assets and/or the Business;
(iii) all contracts or commitments relating to commission arrangements with others;
(iv) all promissory notes, leaseloans, license agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other agreement (instruments relating to an obligation to pay money, whether written Seller shall be the borrower, lender or oral) that involves:guarantor thereunder or whereby any Acquired Assets are pledged;
(Av) any agreement concerning confidentiality or non-competition;
(vi) all purchase, supply, distribution and sales Contracts which are not cancelable on thirty (30) calendar days’ notice;
(vii) any other Contract involving payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date10,000 annually;
(Bviii) prohibiting any Contract between Seller and any Affiliate, partner, officer, director, or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseemployee of Seller;
(Cix) Indebtedness involving liabilities any service Contract affecting any of the Acquired Assets which has an unexpired term as of the Closing Date in excess of $5 million30 days;
(Dx) other than arising in any lease or sublease relating to the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(Exi) “most favored nations” provisionseach Contract not denominated in U.S. dollars;
(Fxii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than arising in the Ordinary Course ordinary course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contractsbusiness;
(Gxiii) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to other Contract that was not entered into in the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations ordinary course of any Person under any insurance contractbusiness; orand
(Hxiv) any material each amendment, supplement and modification (whether oral or supplement written) in respect of any of the foregoing.
(iib) All of the contracts, agreements, instruments and documents Except as set forth on the attached Schedule K 5.6, (each, a “Material Contract”i) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge all of the CompanyMaterial Contracts are in full force and effect and constitute legal, each valid and binding obligations of Seller and the other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generallyparties thereto, (Bii) as limited by Laws relating Seller has fulfilled, or taken all action necessary to the availability enable it to fulfill when due, all of specific performance, injunctive relief or other equitable remedies or its obligations under each such Material Contract and (Ciii) as would Seller is not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor in default under any of the Material Subsidiaries is in material Contracts. Seller has not received any notice of cancellation or termination or any notice of default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event Seller has occurred which, furnished Buyer with the passage true and correct copies of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstandingContracts set forth on Schedule 5.6, pending, or to the Knowledge of the Company, threatened material disputes together with respect to any such Material Contract. True, correct all amendments and complete copies of each Material Contract have been made available to the Purchaserssupplements thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Accelerize New Media Inc)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K4.13, neither the Company nor any of the Material its Subsidiaries is a party to or bound by any executory any: (1) customer contract, lease, license obligation or other agreement commitment (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary which involves an unfulfilled obligation to provide goods or services valued in excess of $3 million during the 12 month period ended on the Closing Date;
100,000 to any other party; (B2) prohibiting contract, obligation or materially limiting commitment (whether written or restricting oral) involving an obligation to make payments in excess of $100,000 to any other party; (3) exclusive license agreements; (4) employment contracts; (5) stock redemption or purchase agreements; (6) loan agreements; (7) capital lease or other financing agreements; (8) agreements with any officers, directors, or stockholders of the Company or any Material Subsidiary from freely engaging in any business of its Subsidiaries or competing anywhere in the world persons or providing for exclusivity in any business line, geographic area organizations related to or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to affiliated with the Company or any Material Subsidiary of its Subsidiaries; (9) leases; (10) powers of attorney; (11) pension, profit-sharing, retirement or any capital maintenance stock option plans; or (12) other material contract or similar agreement pursuant to which not executed in the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing.
(ii) ordinary course. All of the such contracts, agreements, instruments leases and documents set forth on instruments, assuming the attached Schedule K (eachdue authorization, a “Material Contract”) execution and delivery thereof by each of the other parties thereto, are validvalid and in full force and effect and constitute legal, valid and binding and enforceable against obligations of the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto its Subsidiaries and are enforceable in accordance with their respective terms except as such enforceability may be limited (except (Ai) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and or other Laws of general application similar laws affecting the enforcement of creditors’ rights generally, (Bii) as by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) to the extent that rights to indemnification and contribution may be limited by Laws the federal or state securities laws or public policy relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, thereto. Except for the avoidance express terms of doubtsuch agreements, “there is no basis for the termination, expiration or modification of any such agreements within one year from the date hereof, which termination, expiration or modification would have a Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional ClosingAdverse Effect. Neither the Company nor any of the Material its Subsidiaries is in material default under any contract, obligation or in material breach ofcommitment set forth on Schedule 4.13, and to the Company’s knowledge, there is no state of facts which upon notice or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage lapse of time or both would constitute such a default, except for defaults which, singly or in the giving of noticeaggregate, or both, would are not likely to result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersAdverse Effect.
Appears in 1 contract
Sources: Securities Purchase Agreement (Metropcs California/Florida Inc)
Contracts and Commitments. Except for agreements disclosed on the Microgyn Disclosure Schedule:
(a) Microgyn is not a party or subject to:
(i) Except Any union contract or collective bargaining agreement or any employment contract or arrangement, written or oral, providing for future compensation with any officer, consultant, director or employee which is not terminable by it on 30 days' notice or less without penalty or obligation to make payments related to such termination, other than (A) (in the case of employees other than executive officers) such severance agreements as expressly contemplated are not different from standard arrangements offered to employees generally in the ordinary course of business consistent with Microgyn's past practices, a description of which is set forth in the Microgyn Disclosure Schedule and (B) such agreements as may be imposed or implied by law;
(ii) Any plans, contracts or arrangements, written or oral, which collectively require aggregate payments by Microgyn in excess of $25,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the like;
(iii) Any joint marketing, joint development or joint venture contract or arrangement or any other agreement which has involved or is expected to involve a sharing of profits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement in which the annual amount involved is expected to exceed in 1996 or any subsequent year, $5,000 or pursuant to which Microgyn has granted or received most favored customer provisions or exclusive marketing rights related to any product, group of products or territory;
(v) Any lease for real or personal property pursuant to which the amount of payments which Microgyn is required to make on an annual basis exceeds $5,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization which may be, by its terms, terminated or breached by reason of the execution of this Agreement, the Prior Purchase Agreements Articles of Merger or as set forth on any Microgyn Ancillary Agreement, the attached Schedule K, neither the Company nor any closing of the Material Subsidiaries is a party to Merger, or bound by any executory contractthe consummation of the transactions contemplated hereby or thereby, lease, license or other agreement (whether written or oral) that involves:including the Subsequent Merger;
(Avii) payments by Except for trade indebtedness incurred in the Company and/or ordinary course of business, any Material Subsidiary instrument evidencing or related in any way to indebtedness in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere 5,000 incurred in the world acquisition of companies or providing other entities or indebtedness in excess of $5,000 for exclusivity in any business lineborrowed money by way of direct loan, geographic area sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(Cviii) Indebtedness Any license agreement, either as licensor or licensee;
(ix) Any contract containing covenants purporting to limit Microgyn's freedom to compete in any line of business or in any geographic area or with any third party;
(x) Any agreement, contract or commitment relating to capital expenditures and involving liabilities future obligations in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract5,000; or
(Hxi) any Any other agreement, contract or commitment which is material amendment, modification or supplement in respect of any of the foregoingto Microgyn's Business.
(iib) All of Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed in the contractsMicrogyn Disclosure Schedule is valid and binding on Microgyn and is in full force and effect, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, andneither Microgyn nor, to the Knowledge knowledge of the CompanyMicrogyn, each any other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcythereto, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be has breached any material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach provision of, or is in receipt default under the terms of, any such agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(c) There is no agreement, judgment, injunction, order or decree binding upon Microgyn which has or could reasonably be expected to have the effect of prohibiting or materially impairing any written claim material current business practice of such Microgyn, any acquisition of material default or material breach, under any Material Contract. No event has occurred which, with the passage of time property by Microgyn or the giving conduct of notice, business by Microgyn as currently conducted or both, would result as proposed to be conducted by Microgyn in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersMicrogyn Business Plan.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Conceptus Inc)
Contracts and Commitments. (a) To the extent not listed on Schedule 2.1B or Schedule 2.1D, Schedule 2.1F hereto lists all Material Contracts related to the operation of the Business to which United is a party or by which it or any of its assets or properties are bound (true and correct copies, each of which have been previously delivered to Buyer). Each Material Contract (whether disclosed on Schedule 2.1B, Schedule 2.1D, Schedule 2.1F or otherwise) is in full force and effect and embodies the complete understanding between the parties thereto with respect to the subject matter thereof. Except as expressly set forth on Schedule 2.1F, (i) Except as expressly contemplated there exists no material default or claim thereof by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither the Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary Contract, (ii) there are no facts or conditions which, if continued or noticed, would result in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or a default having a Material Adverse Effect under any Material Subsidiary from freely engaging in Contract, (iii) United has not received any business notice that any person intends to cancel, modify or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or terminate any Material Subsidiary Contract, or to exercise or not to exercise any capital maintenance contract or similar agreement pursuant to which the Company or options thereunder, (iv) United has not given any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations notice of any Person under any insurance contract; or
(H) any material amendmentcancellation, modification or supplement in respect termination of any Material Contract or of the foregoing.
exercise or non-exercise of any options thereunder, (iiv) All of the contracts, agreements, instruments each Material Contract is a valid and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and agreement enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective its terms (except (A) as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and or other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws similar laws relating to or affecting creditors' rights generally and to general equity principles (whether such enforceability is considered in a proceeding at law or in equity), and (vi) no consent or approval of the availability other parties to any Material Contract or any person pursuant to any Material Contract is required for the consummation of specific performancethe transactions contemplated herein except as set forth on said Schedule, injunctive relief all of which have been obtained and are in full force and effect.
(b) United is not a party to any contract for goods or services or any lease with any officer, director, shareholder, employee or agent of United or any Affiliate of any such person.
(c) No purchase or sale commitments by United are in excess of the normal, ordinary and usual requirements of the Business; United has no outstanding power of attorney to any person, firm or corporation for any purpose whatsoever; United is not restricted by law or agreement from carrying on the Business anywhere in the world; no officer, director, shareholder or Affiliate of United has any financial interest, direct or indirect, in United's supplier s or customers; except as set forth on Schedule 6.12(c) hereto, United grants no discounts or rebates to its customers.
(d) United has not made any other equitable remedies contract or agreement or granted any option to contribute or otherwise transfer all or a significant part of the capital stock or Assets of United.
(Ce) The Customer Deposits (as would not be material defined in Section 3.1(y)) are all amounts owed to the Company and the Company Subsidiaries, taken customers of United as a whole); provided, that, for the avoidance result of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied amounts held by United as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserscustomer deposit.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on Schedule 4.9, and in each case other than with respect to the attached Schedule KTransaction Documents, neither the no Acquired Company nor any of the Material Subsidiaries is a party to or bound by any executory contract, lease, license or other agreement (whether written or oraloral (each a "Material Contract"):
(i) that involves:
(A) payments by any notice, pay in lieu of notice, golden parachute, termination pay, profit sharing, severance, retention bonus, transaction bonus or arrangement or management agreement or other Contract for the employment or engagement of any officer, employee or other Person on a full time, part-time or consulting basis (other than any such contract, program, agreement or arrangement maintained pursuant to any Legal Requirement from the employment of an employee without an agreement as to notice, severance or other similar payments) or (B) providing for the payment of any cash or other compensation or providing for the accelerated vesting of any form of compensation or benefits upon the sale of all or a material portion of the assets of any Acquired Company and/or any Material Subsidiary in excess or a change of $3 million during the 12 month period ended on the Closing Datecontrol;
(Bii) prohibiting collective bargaining agreement or materially limiting other labor Contract, including letters of understanding, letters of intent and other written communications with any labor union, labor organization, works council, or restricting association of employees (each a "Collective Bargaining Agreement" or collectively, the Company "Collective Bargaining Agreements");
(iii) Contract relating to Indebtedness or to the mortgaging, pledging or otherwise placing a Lien on any tangible asset or property of any Acquired Company;
(iv) Contract with a professional employer organization ("PEO");
(v) Contract with any Material Subsidiary Customer;
(vi) Contract with any Material Supplier;
(vii) Contract which prohibits it from freely engaging in any business or competing anywhere in the world or providing for exclusivity in to own, sell, transfer pledge or otherwise dispose of any business line, geographic area assets or otherwiserestricts it from soliciting or hiring any Person;
(Cviii) Indebtedness involving liabilities Contract relating to the ownership of Investments in any Person, including Investments in joint ventures and minority equity investments;
(ix) Contract under which any Acquired Company has advanced or loaned any other Person any amount;
(x) Contract under which any Acquired Company is lessee of or holds or operates any property, real or personal, owned by any other party which involves annual rental payments of greater than $25,000 or group of such Contracts with the same Person which involve consideration in excess of $5 million50,000 in the aggregate;
(Dxi) other than arising in the Ordinary Course of BusinessContract under which any Acquired Company is lessor of, or permits any third party to hold or operate, any joint ventureproperty, partnership real or other cooperative arrangement personal, owned or similar arrangement involving a sharing controlled by any Acquired Company which involves consideration in excess of profits or otherwise$25,000;
(Exii) “most favored nations” provisionspower of attorney;
(Fxiii) other than arising in the Ordinary Course of BusinessContract that is a settlement, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell conciliation or similar agreement pursuant to which which, on or after the date of execution of this Agreement, any Person Acquired Company has agreed any outstanding material obligation or is required to contribute capital pay consideration in excess of $25,000;
(xiv) Contract that provides any customer of any Acquired Company with pricing, discounts or surplus benefits that change based on the pricing, discounts or benefits offered to other customers of any Acquired Company, including Contracts containing "most favored nation" provisions;
(xv) Contract where any Acquired Company is the beneficiary of an exclusive dealing or any similar exclusivity provision, or where any Acquired Company is the beneficiary of pricing, discounts or benefits offered to any Acquired Company, including contracts containing "most favored nation" provisions;
(xvi) Contract relating to the acquisition or sale of the business (or any material portion thereof), whether or not consummated and including any confidentiality agreements entered into with respect thereto;
(xvii) other Contract (or group of related Contracts) not otherwise set forth on Schedule 4.9, the performance of which involves consideration in excess of $75,000 per year or $150,000 in the aggregate or which cannot be canceled by any Acquired Company within 30 days' notice without premium or penalty;
(xviii) except as set forth on Schedule 4.17, any Contracts with Affiliates of any Acquired Company or any Material Subsidiary Equityholder;
(xix) (i) any Contract materially limiting any Acquired Company's ability to own, use, transfer, license, disclose, distribute or enforce any capital maintenance contract Intellectual Property, including any license, concurrent use Contract, consent Contract, settlement Contract, escrow Contract, indemnification, or similar agreement pursuant to which (ii) any Contract providing for the Company license or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations development of any Person under Intellectual Property, independently or jointly, by or for any insurance contractAcquired Company (except that Contracts for Off-the-Shelf Software and non-exclusive licenses to customers granted in the ordinary course of business need not be scheduled); or
(Hxx) Contract or order between any material amendment, modification Acquired Company and a Governmental Entity or supplement between any Acquired Company as a subcontractor (at any tier) in respect of any of the foregoingconnection with a Contract between another Person and a Governmental Entity.
(iib) All With respect to the Acquired Companies' obligations thereunder and, with respect to the obligations of the contractsother parties thereto, agreements, instruments and documents all of the Contracts set forth or required to be set forth on the attached a Schedule K (each, a “Material Contract”) hereto are valid, binding and enforceable against the as to any Acquired Company or the respective Material Subsidiaryparty to such Contract, as applicable, and, and to the Knowledge of the Company, each as to the other party thereto parties thereto, in accordance with their respective terms (except (A) terms, and will continue as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting such following the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any consummation of the Material Subsidiaries transactions contemplated hereby. No Acquired Company is in material default under or under, in material breach of, of or in receipt of any written claim of such material default or material breach, breach under any Material such Contract. No To the Knowledge of the Company, no event has occurred which, which with the passage of time or the giving of noticenotice or both would or would reasonably be expected to, or both, would result in a material default, breach or event of noncompliance, in each such case, noncompliance by the any Acquired Company or any of the Material Subsidiaries under any such Material Contract or would permit the termination of any such Contract. There are no outstanding, pending, or to To the Knowledge of the Company, threatened material disputes with respect there has been no breach or cancellation or anticipated breach or cancellation by the other parties to any such Material Contract. True.
(c) A true, correct and complete copies copy of each Material Contract of the written Contracts and an accurate description of each of the oral Contracts which are referred to on the attached Schedules, have been made available delivered to Buyer (except for Contract for Off-the-Shelf Software and non-exclusive licenses to customers granted in the Purchasersordinary course of business).
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Section 3.09(a) of the Company nor any Disclosure Schedule, the Company is not party to, bound by or subject to (and none of the Material Subsidiaries is a party Company’s assets are subject to and the Company has no rights, obligations or bound by any executory contract, lease, license or other agreement (whether written or oralLiabilities under) that involvesany:
(Ai) payments by the Company and/or any Material Subsidiary Contract involving aggregate consideration in excess of $3 million during the 12 month period ended on the Closing Date50,000;
(Bii) Contract relating to any acquisition or disposition by the Company of any material assets or properties or the operating business or capital stock of any other Person, or relating to any such prior acquisition to the extent the Company has any remaining right, obligation or Liability (whether fixed or contingent) thereunder;
(iii) Contract relating to the membership interests or other equity interests of the Company (including any Unit), including any voting or transfer restrictions or arrangements relating to the membership interests or other equity interests of the Company (including any Unit) or any rights to purchase or acquire any capital stock or other equity interests of the Company (including any Unit);
(iv) Contract that provides for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(v) Contract establishing any joint ventures or partnerships;
(vi) Contract reflecting a settlement of any threatened or pending legal proceedings or Action;
(vii) Contract (A) prohibiting or materially limiting or restricting the right of the Company or any Material Subsidiary from freely engaging to compete in any line of business or competing anywhere in the world to conduct business with any Person or providing for exclusivity in any business linegeographical area, geographic area (B) containing a most favored nation or otherwisesimilar provision in favor of any customer or counterparty, or (C) obligating the Company 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;
(Cviii) Contract with respect to, relating to or involving Intellectual Property (including any Company Intellectual Property), including any Contract pursuant to which any Intellectual Property (including any Company Intellectual Property) is or has been licensed, sold, assigned or otherwise conveyed or provided to or by the Company (including any IP Licenses);
(ix) stock purchase, stock option or similar plan;
(x) Contract or indenture relating to the borrowing of money or Indebtedness or to placing a Lien on any of the Company’s assets;
(xi) guaranty of any obligation for borrowed money;
(xii) Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $50,000;
(xiii) Contract under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $50,000;
(xiv) Contract relating to (or for the use or occupancy of) any real property (including any Leased Real Property);
(xv) Contract or group of related Contracts with the same party for the purchase or sale of materials, supplies, goods, services, equipment or other assets or properties involving liabilities aggregate consideration in excess of $5 million50,000;
(Dxvi) other than arising in the Ordinary Course of Business, Contract with any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwiseGovernmental Body;
(Exvii) “most favored nations” provisionsContract relating to the design, development, testing, manufacture, sale or distribution of any Company Products, other than Invention Assignment Agreements and non-exclusive purchase, license and use agreements for Company Products that do not materially differ in substance from the Company’s standard forms thereof (provided that true, correct and complete copies of such standard forms have been made available to Parent);
(Fxviii) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to Contract under which any Person has agreed been granted the right to contribute capital manufacture, sell, market or surplus to the distribute any Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus Product on an exclusive basis to any Person or guarantee the obligations group of Persons or in any Person under any insurance contract; orgeographical area;
(Hxix) Contract between the Company, on the one hand, and any material amendmentAffiliate, modification officer, director, employee or supplement in respect independent contractor of the Company, on the other hand;
(xx) Contract for or relating to employment or engagement as an independent contractor or consultant;
(xxi) Contract to enter into any of the foregoing; and
(b) The Company has provided Parent and Merger Sub a true, complete and correct copy of all written Material Contracts, together with all amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Material Contract.
(iic) (i) All the Contracts listed, or required to be listed, on Section 3.09(a) of the contracts, agreements, instruments and documents set forth on the attached Company Disclosure Schedule K (each, a “Material Contract” and, collectively, the “Material Contracts”) are legal, valid, and binding and on the Company, enforceable against the Company or the respective Material Subsidiaryit in accordance with its terms, as applicable, and, and is in full force and effect; (ii) to the Knowledge knowledge of the Company, each other no third party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include has violated any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach provision of, or in receipt of failed to perform any written claim of such material default or material breachobligation required under the provisions of, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or ; and (iii) to the Knowledge knowledge of the Company, threatened material disputes with respect to no third party is in breach, or has received written notice of breach, of any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasers.
Appears in 1 contract
Sources: Merger Agreement (FISION Corp)
Contracts and Commitments. (a) Excluding (i) Except as expressly contemplated by this Agreementthe Transactions and any Contracts and/or Trading Contracts relating to the Transactions, (ii) Affiliate Contracts, (iii) Cornerstone Contracts, (iv) any Credit Support associated with the Prior Purchase Agreements or as set forth on the attached Schedule Kitems listed in Section 4.20(a)(i) through (iii), (iv) Contracts pursuant to which neither the Company nor any of its assets will be bound or have liability after Closing (including any Contracts associated with or relating to any Excluded Items), and (v) Benefit Plans, Schedule 4.20 sets forth a list as of the Material Subsidiaries date of this Agreement of the following Contracts (including any waiver granted with respect to the material terms of such Contracts) to which the Company is a party to or by which the Company’s assets are bound by any executory contract(the Contracts listed on Schedule 4.20 that meet the descriptions in this Section 4.20, leasebeing collectively, license or other agreement (whether written or oral) that involves:the “Material Contracts”):
(A) payments by the Company and/or each Contract under which it has incurred, assumed or guaranteed any Material Subsidiary outstanding indebtedness for borrowed money, whether as borrower, lender or guarantor, in excess of $3 million during the 12 month period ended on the Closing Date1,000,000 and all related security agreements or similar agreements granting Liens securing such indebtedness for borrowed money;
(B) prohibiting or materially Contracts containing covenants limiting or restricting the Company or any Material Subsidiary from freely engaging freedom of the Companies to engage in any line of business or competing anywhere in the world compete with any Person or providing for exclusivity operate in any business line, geographic area or otherwiselocation;
(C) Indebtedness involving liabilities in excess Any Contract pending for the acquisition or disposition, directly or indirectly (by merger or otherwise) of $5 millionany of the Capital Stock of the Companies;
(D) Any Contracts between the Companies, on one hand, and the Seller or any Non-Company Affiliate on the other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwisehand;
(E) “most favored nations” provisions;Contracts relating to the licensing of Intellectual Property (other than the Excluded Items) having an annual fee of at least $100,000, but specifically excluding any licensing agreements generally available, off-the-shelf or non-customized software; and
(F) Any (1) employment Contract or consulting contract with a natural person, in each case requiring annual compensation (including base salary, bonuses and benefits) in excess of $600,000, and (2) any employee, officer or director indemnification Contract (other than arising any Charter Documents), and in the Ordinary Course case of Business, material third-party administration or other insurance policy administration clauses (1) and (2) excluding all Contracts relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell Incentive Plan Payment Amount or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoingDeferred Incentive Plan Amount.
(iib) All The Companies have provided Buyer with, or access to, copies of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “all Material Contract”) are valid, binding and enforceable against the Company or the respective Material SubsidiaryContracts, as applicable, and, to amended through the Knowledge date of the Company, each other party thereto this Agreement.
(c) The Companies are not in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief breach or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to .
(d) To the Knowledge of Seller, there are no legally binding oral contracts (other than oral contracts relating to or associated with the CompanyMarketing and Trading Transactions, threatened material disputes with respect such as oral confirmations) to which any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the PurchasersCompany is a party.
Appears in 1 contract
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on the attached Schedule K, neither Section 3.10(a) of the Company nor Disclosure Letter, no Target Company is party to any:
(i) CBA;
(ii) Contract, agreement or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Target Company has incurred or may incur Indebtedness exceeding $250,000 for which any of any Target Company will be liable following the Material Subsidiaries Closing, or (B) relating to any Liens on assets of any Target Company;
(iii) guaranty of any Indebtedness or other material guaranty;
(iv) Contract, lease or agreement under which it is a party to lessee of, or bound holds, uses or operates any real or personal property or assets owned by any executory contractother party, leasefor which the annual rental or payment commitment exceeds $250,000;
(v) Contracts or group of related Contracts with any Top Customer, license with any Top Distributor or any Top Supplier;
(vi) Contracts or agreements relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company since the Look-back Date or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company or, pursuant to which any Target Company have any continuing “earn out” or other contingent payment obligations or any surviving material indemnification obligations;
(vii) joint venture, partnership, limited liability company or similar agreement with any third party (whether written including any agreement providing for joint development or oral) that involves:marketing);
(A) payments Contract pursuant to which any Target Company licenses, or is otherwise permitted by the Company and/or a third party to practice, use or register, or receive any Material Subsidiary in excess other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than $3 million during the 12 month period ended on the Closing Date;
250,000 per year), (B) prohibiting Contract pursuant to which a third party licenses, or materially limiting is permitted to use or restricting the Company register, or granted any Material Subsidiary from freely engaging in other rights under, any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
Company-Owned IP Rights (C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising non-exclusive licenses granted by a Target Company to customers in the Ordinary Course of Business), or (C) Contract affecting any joint ventureTarget Company’s ability to use, partnership enforce, or other cooperative arrangement disclose any material Intellectual Property Rights, such as covenant-not-to-s▇▇, coexistence, consent-to-use, concurrent use, or similar arrangement involving a sharing of profits or otherwisesettlement agreements;
(Eix) “most favored nations” provisionsdistribution, sales representative, marketing or similar Contract or agreement that required any Target Company to make commission payments under such agreement in excess of $250,000 during the twelve (12)-month period ended on the Balance Sheet Date;
(Fx) Contract or agreement pursuant to which any Target Company would be required to make, in the aggregate, capital expenditures in excess of $250,000;
(xi) Contract or agreement that (a) materially limits the ability of any Target Company to compete in any line of business or with any product or with any Person or in any geographic area or market or during any period of time or (b) contains covenants that restrict the business activity of any Target Company in any material respect (other than arising non-disclosure agreements entered into in the Ordinary Course of Business);
(xii) Contract or agreement that contains “most-favored-nation” obligations or restrictions, material third-party administration or other insurance policy administration relating rights of first refusal or offer or any similar requirement or right, in each case binding any Target Company in favor of any third party;
(xiii) Contract or agreement where any Target Company is subject to the Insurance a requirement of exclusive dealing or any similar exclusivity obligation;
(xiv) any interest, currency or hedging derivatives or similar Contracts;
(Gxv) a capital maintenance contract, keepwell Contract or similar agreement pursuant to which any Person has agreed to contribute capital that limits the incurrence of Indebtedness or surplus to the Company declaration or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations payment of any Person under dividends or other distributions;
(xvi) Contract or agreement that involves payment to or by any insurance contractTarget Company in excess of $250,000 annually;
(xvii) Contract or agreement whose termination (other than those termination by passage of time) would reasonably be expected to have a Company Material Adverse Effect;
(xviii) employment, severance or consulting Contract that is not terminable at will by any Target Company and which will require the payment of amounts by any Target Company after the date hereof in excess of $250,000 in total compensation annually; or
(Hxix) any material amendment, modification Contract or supplement in respect agreement that relates to the settlement of any Proceeding (A) with any Governmental Authority since the Look-back Date; (B) that materially restricts or imposes obligations upon any Target Company; or (C) requires payment by an Target Company of more than $500,000 after the foregoingdate hereof.
(iib) All of the contracts, agreements, instruments and documents set forth on the attached Schedule K Each Contract described in clauses (each, i) through (xix)of Section 3.10(a) is a “Material Contract”. Purchaser either has been supplied with, or has been given access to, a true and correct copy of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto.
(c) Neither any Target Company nor, to the Company’s Knowledge, any other party thereto is in breach of, violation of or default under any Material Contract, except as would not reasonably be expected to be material to the Target Companies, taken as a whole. No event has occurred that with notice or lapse of time or both would constitute a breach of, violation of or default under, any Material Contract by any Target Company, or, to the Company’s Knowledge, any counterparty, except as would not reasonably be expected to be material to the Target Companies, taken as a whole. All Material Contracts are validvalid and in full force and effect and constitute legal, valid and binding and enforceable against obligations of the applicable Target Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of Company’s Knowledge, each counterparty, and are enforceable against the applicable Target Company and, to the Company’s Knowledge, each other party the counterparty thereto in accordance with their respective terms (terms, except (A) as enforceability may be limited by applicable bankruptcybankruptcy laws, insolvency, reorganization, moratorium and other similar Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to and general principles of equity affecting the availability of specific performance, injunctive relief or performance and other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchasersremedies.
Appears in 1 contract
Sources: Business Combination Agreement (Magnum Opus Acquisition LTD)
Contracts and Commitments. (ia) Except as expressly contemplated by this AgreementSchedule 2.12 sets forth a true, the Prior Purchase Agreements complete and correct list (including all amendments, modifications or as set forth on the attached Schedule K, neither the Company nor any supplements with respect thereto) of the Material Subsidiaries following agreements (written or oral) to which any Seller is a party to the extent any such agreement (i) is currently in effect or bound (ii) has been terminated on or prior to the date hereof but contains provisions that survived such termination and such provisions are currently in effect (other than provisions that customarily survive such termination and do not relate to the principal business purpose of such agreement and which do not create any material or ongoing financial or other liability to NaviSite):
(i) any loan agreement, note, mortgage, indenture, security agreement and other agreement and instrument relating to the borrowing of money;
(ii) any agreement (or group of related agreements) between any Seller and any Top Customer or Top Vendor;
(iii) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company (other than the Organizational Documents of the Sellers);
(iv) any agreement (or group of related agreements) under which any Seller has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations and operating lease commitments) involving more than $20,000 or under which it has imposed (or may impose) an Encumbrance on any of the assets, tangible or intangible, of any Seller or the Businesses;
(v) any agreement for the disposition of any portion of the assets of the Sellers or the Businesses (other than sales in the ordinary course of business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases in the ordinary course of business);
(vi) any agreement concerning non-competition, exclusivity, non-solicitation, non-recruitment or other such covenants that restricts any conduct of any business by any executory contractSeller, leasein each case with respect to geographical area of operations or scope or type of business of any Seller, license or other agreement (whether written or oral) that involves:
than (A) non-competition agreements entered into between any Seller and its employees or consultants and which do not restrict any Seller with respect to non-competition or (B) customer contracts and non-disclosure agreements with standard non-solicitation of employee provisions;
(vii) any employment or consulting agreement (other than offer letters for at-will employment for employees that do not provide for any severance benefit upon such employee’s termination);
(viii) any collective bargaining or similar agreement;
(ix) any agreement involving any current officer, employee, director or shareholder of any Seller or consulting agreement with an individual involving payments by the Company and/or any Material Subsidiary Seller in excess of $3 million during 50,000 per annum other than agreements entered into in connection with the 12 month period ended on the Closing Dateissuance and exercise of options;
(Bx) prohibiting any buy-sell or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwisebarter agreement;
(Cxi) Indebtedness involving liabilities any derivative contract and other hedging arrangement;
(xii) any acquisition agreement, by means of asset purchase, merger, stock purchase, asset purchase, consolidation or other similar transaction, of a person or business by any Seller (each, an “Acquisition”); and
(xiii) any other material agreement, including a guarantee, not entered into in the ordinary course of business or that requires the payment by any Seller in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect of any of the foregoing20,000.
(iib) All of the contracts, agreements, agreements and instruments and documents set forth on required to be listed in Schedule 2.12 (the attached Schedule K (each, a “Material ContractContracts”) are validvalid and are in full force and effect and constitute legal, valid and binding and enforceable against obligations of the Company or the respective Material Subsidiary, as applicable, Sellers and, to the Knowledge knowledge of the CompanySellers, each of the other party thereto parties thereto, and are enforceable in accordance with their respective terms (except (A) as limited by subject, in each case, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and or other Laws of general application similar laws relating to or affecting the enforcement rights of creditors’ rights generallycreditors generally and general principles of equity. The Sellers have no knowledge of, (B) as limited by Laws relating and have not received, any notice regarding termination of any Material Contracts and the Sellers have no knowledge of any Top Customer which has indicated that it intends to terminate any Material Contract or not renew upon its expiration. No Seller is in default and to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any knowledge of the Material Subsidiaries Sellers, no other party is in material default under or in material breach of, or in receipt complying with any provisions of any written claim of such material default or material breach, under any Material Contract. No , and to the knowledge of the Sellers, no condition or event has occurred or fact exists which, with the passage notice, lapse of time or the giving of notice, or both, would result in could constitute a material default, breach default thereunder on the part of any Seller. The Sellers have delivered or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or made available to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. TrueNaviSite a true, correct and complete copies copy of each of the Material Contract have been made available to the PurchasersContracts.
(c) Sellers are not in material default under any Assumed Obligation.
Appears in 1 contract
Contracts and Commitments. (a) There are no amounts due or payable by Seller or any of its Affiliates with respect to any Acquired Asset accruing prior to the Closing Date, and Seller agrees to pay, when and as due, all amounts due and payable by Seller or any of its Affiliates with respect to any Acquired Asset accruing prior to the Closing Date, including without limitation:
(i) any contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar plan;
(ii) any management agreement or contract for the employment of any officer, partner, individual employee or other person;
(iii) any agreement or indenture (including with any Lender) relating to Indebtedness or to placing a Lien on any Acquired Asset; and
(iv) any lease or license agreement under which Seller is lessor or licensor of any Acquired Asset.
(b) Except as expressly contemplated by disclosed in Schedule 4.12(b) or as provided in this Agreement, the Prior Purchase Agreements there are no contracts or as set forth on the attached Schedule K, neither the Company nor agreements entered into by Seller or any of the Material Subsidiaries is a party to its Affiliates, whether formal or bound by any executory contractinformal, lease, license or other agreement (whether written or oral) that involves, currently in effect, or with any remaining obligations to Seller of any kind:
(Ai) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary which prohibits Seller from freely engaging in business relating to any business or competing Acquired Assets anywhere in the world or providing for exclusivity in any business line, geographic area or otherwiseworld;
(Cii) Indebtedness involving liabilities in excess relating to the marketing, sale, distribution, production, advertising or promotion of $5 millionany Acquired Asset;
(Diii) other than arising in the Ordinary Course of Businessunder which Seller is obligated to indemnify any third party against any Product warranty, any joint venture, partnership or other cooperative arrangement infringement or similar arrangement involving a sharing of profits or otherwiseclaims;
(Eiv) “most favored nations” provisionsrelating to or constituting a power of attorney executed by or on behalf of Seller relating to any Acquired Asset;
(Fv) other than arising in the Ordinary Course that creates any existing or future, or potential Indebtedness of Business, material third-party administration or other insurance policy administration relating Seller on an Acquired Asset (including any Indebtedness to the Insurance Contractsany Lender);
(Gvi) a capital maintenance contractwith TCS, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company Suzo Happ, Ten Stix or any Material Subsidiary of their respective subsidiaries or Affiliates, or any capital maintenance contract distributor, representative or similar agreement pursuant agent with respect to any of the Products;
(vii) which the Company allows or grants any Material Subsidiary has agreed to contribute capital or surplus rights to any Person for the manufacture, marketing, sale, distribution, production, advertising or guarantee the obligations promotion of any Person under Acquired Asset;
(viii) which creates any insurance contractjoint venture or partnership regarding any Acquired Asset;
(ix) which affects Seller’s legal title in the Shuffler and DeckChecker Intellectual Property;
(x) which is a beta test agreement; or
(Hxi) which relates to the research and development of any Acquired Asset.
(c) Except as disclosed in Schedule 4.12(c), with respect to any Acquired Asset:
(i) no contract or commitment has been breached in any material amendment, modification respect or supplement in respect cancelled by the other party thereto (other than contracts or commitments which have been terminated without any further liability or obligation on the part of any of the foregoing.party thereto);
(ii) All Seller and each of the contracts, agreements, instruments and documents set forth on the attached Schedule K (each, a “Material Contract”) are valid, binding and enforceable against the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include its Affiliates have performed all obligations under any contract that will currently in effect required to be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company Seller or any of the Material Subsidiaries its Affiliates and there is no material breach of or default under any such Material Contract. There are no outstandingcurrently in effect lease, pendingcontract, commitment or other agreement to the Knowledge which Seller or any of the Companyits Affiliates is a party.
(d) The termination by Seller or any of its Affiliates or expiration of any contract or agreement of Seller or any of its Affiliates, threatened material disputes with respect whether formal or informal, written or oral, currently in effect, concerning any Acquired Asset, will not constitute a breach of said contract or agreement, nor result in any liability to Seller or any such Material Contract. Trueof its Affiliates.
(e) Seller has provided to Buyer true, correct and complete copies of each Material Contract have been made available all non-disclosure agreements to the Purchaserswhich Seller or any of its Affiliates is a party regarding any trade secret or computer code concerning any Acquired Asset (other than any such non-disclosure agreement with Buyer).
Appears in 1 contract
Sources: Purchase and Settlement Agreement (Elixir Gaming Technologies, Inc.)
Contracts and Commitments. (a) The Company is not a party to or bound by any agreements, contracts or commitments which individually or when aggregated with all related agreements, contracts or commitments, are material to the business, operations, condition (financial or otherwise), liabilities, assets, earnings or working capital of the Company or that provide for the grant of any preferential rights to purchase or lease any of the Company Assets;
(b) The enforceability of the agreements, contracts and commitments referred to in subsections (a-h) of this Section 3.13 will not be affected in any respect by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(c) No purchase contracts or commitments of the Company regarding the Parowax Business or otherwise are in excess of the normal, ordinary and usual requirements of the Company, 21 or to the best knowledge of the Company, were entered into at prices materially in excess of those available in the industry in arm's length transactions on the respective dates thereof;
(d) The Company is not a party to or bound by any outstanding agreements, arrangements or contracts with any of its officers, employees, agents, consultants, advisors, salesmen or sales representatives that (A) are not cancelable by it on notice of not longer than 30 days and without the imposition of any liability, penalty or premium, (B) require non-cancelable payment by the Company of over $20,000, or (C) provide for any bonus or other payment based on the sale of the Company or any portion thereof;
(e) The Company is not a party to or bound by any employment agreement, consulting agreement or any other agreements that contains any provision for severance or termination pay liabilities or obligations;
(f) The Company is not a party to or bound by:
(i) Except as expressly contemplated any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by this Agreementthe Company;
(ii) any guaranty, direct or indirect, by the Prior Purchase Agreements Company of any obligation for borrowings or as set forth otherwise, excluding endorsements made for collection in the ordinary course of business;
(iii) any obligation to make payments, contingent or otherwise, of over $20,000 arising out of any prior acquisition of the business, assets or stock of other persons;
(iv) any collective bargaining agreement with any labor union;
(v) any lease or similar arrangement for the use by the Company of personal property requiring payments by the Company, on an annual basis, of over $20,000;
(vi) any agreement containing noncompetition or other limitations restricting the attached Schedule Kconduct of the business of the Company; and
(vii) any partnership, neither joint venture or similar agreement.
(g) Neither the Company nor any of the Material Subsidiaries its officers, directors, shareholders or affiliates is a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(A) payments by the Company and/or any Material Subsidiary in excess of $3 million during the 12 month period ended on the Closing Date;
(B) prohibiting or materially limiting or restricting the Company or any Material Subsidiary from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in this Agreement) or arrangement for the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(H) any material amendment, modification or supplement in respect sale of any of the foregoingassets (other than in the ordinary course of business and consistent with past practice) or capital stock of Bromar or the Subsidiaries or for the grant of any preferential rights to purchase any of the assets or capital stock of Bromar or the Subsidiaries; and 22
(h) The Company is not bound by any agreement to redeem the Common Shares held by any shareholder, which agreement will not be effectively and properly terminated by the consummation of the Merger.
(iii) All With respect to each contract and agreement listed in Section 3.13 of the contractsDisclosure Schedule, agreements, instruments and documents except as set forth on the attached Schedule K therein, (each, a “Material Contract”i) are each of such contracts and agreements is valid, binding and in full force and effect and is enforceable against by the Company or the respective Material Subsidiary, as applicable, and, to the Knowledge of the Company, each other party thereto in accordance with their respective terms (except (A) as limited by applicable its terms, subject to bankruptcy, insolvency, reorganization, moratorium reorganization and other Laws and judicial decisions of general application affecting the enforcement of creditors’ rights generally, (B) as limited by Laws applicability relating to or affecting creditors' rights and to general principles of equity; (ii) there have been no cancellations or threatened cancellations thereof nor are there any outstanding material disputes thereunder; (iii) neither the availability of specific performanceCompany, injunctive relief or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries other party is in breach of any material provision thereof; and (iv) there does not exist any default under or in material breach ofunder, or in receipt of any written claim of such material default event or material breach, under any Material Contract. No event has occurred which, condition which with the giving of notice or passage of time or the giving of notice, or both, both would result in become a material default, breach or event default under, the terms of noncompliance, in each any such case, by contract or agreement on the part of the Company or on the part of any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, other party thereto.
(j) The Company has delivered or made available to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct MSSC California or Marketing Specialists true and complete copies of each Material Contract have been made available to written contract or agreement listed in Section 3.13 of the PurchasersDisclosure Schedule and true and accurate summaries of any oral agreement listed thereon.
Appears in 1 contract
Sources: Merger Agreement (Richmont Marketing Specialists Inc)
Contracts and Commitments. (ia) Except as expressly contemplated by this Agreement, the Prior Purchase Agreements or as set forth on Schedule 8.10(a), as of the attached Schedule Kdate hereof, neither the Company nor any of the Material Subsidiaries is not a party to or bound by any executory contract, lease, license or other agreement (whether written or oral) that involves:
(Ai) payments by pension, profit sharing, retirement, bonus, incentive, option, phantom equity, employee equity purchase or other plan or arrangement providing for deferred or other compensation to employees other than plans qualified under Section 401(a) of the Company and/or Code as set forth on Schedule 8.16(a);
(ii) collective bargaining agreement or any Material Subsidiary other contract with any labor union or other labor organization, or any severance agreements, programs, policies or arrangements;
(iii) agreement for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis which provides for an annual compensation in excess of $3 million during 100,000 (other than at-will agreements and offer letters that can be terminated at any time for any reason without any severance or material liability to the 12 month period ended on Company), any agreement providing for severance, any agreement providing for the Closing Datepayment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or any agreement relating to loans to any employees, officers, managers, directors or Affiliates (other than advances in the ordinary course of business);
(Biv) prohibiting agreement or materially limiting arrangement requiring the consent of any party thereto or restricting containing any provision which would result in an acceleration, modification or termination of any rights or obligations of any party thereto upon, or providing any party thereto any remedy (including rescission or liquidated damages) in the event of, a direct or indirect change in control of the Company or the consummation of the transactions contemplated by this Agreement;
(v) noncompete or nonsolicitation agreements or agreements regarding ownership and rights with regard to work produced by employees, contractors or consultants;
(vi) agreement or arrangement providing for the payment of a deferred purchase price of property or services by the Company, contingently or otherwise, other than trade payables incurred in the ordinary course of business;
(vii) agreement or arrangement requiring payments in consideration for non-competition, non-solicitation, intellectual property assignment or protection, or information confidentiality obligations of any Material Subsidiary current or former employee, consultant, agent, officer, director, contractor or other service provider of or to the Company or consulting agreement with any former employee, officer or director of the Company other than confidentiality agreements not requiring any payments (other than compensation in the ordinary course of business) by the Company entered into with employees or former employees in the form previously provided to Parent;
(viii) agreement under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds (other than advances to the Company’s employees in the ordinary course of business or collection of accounts receivable in the ordinary course of business);
(ix) agreement or indenture relating to borrowed money or other Indebtedness, a guaranty of any obligation by the Company (for borrowed money or otherwise) or the mortgaging, pledging or otherwise granting of a Lien (including pursuant to any credit support or similar agreement) on any asset or group of assets of the Company, or any letter of credit arrangements or performance bond arrangements;
(x) lease or agreement under which the Company is lessee of or holds or operates any personal property under which the aggregate annual rental payments exceed $10,000;
(xi) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(xii) contract or group of related contracts with the same party or group of affiliated parties for the purchase by the Company of supplies, products, equipment or other personal property or for the receipt of services by the Company under which the undelivered balance of such products and services has a selling price in excess of $10,000;
(xiii) contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six (6) months from the date or dates thereof and not terminable by the Company upon sixty (60) days’ or less notice without penalty;
(xiv) agreement relating to the ownership of any Investment (including all agreements related to any joint venture);
(xv) agreement relating to the promotion, advertising or marketing of the services provided by the Company;
(xvi) agreement with any Governmental Entity, any Person listed on the Schedule 8.21(a) or any Person listed on Schedule 8.21(b);
(xvii) agreements providing for warranty or indemnity terms obligating the Company with respect to its services and business that differ in any material respect from the Company’s standard customer terms and conditions (a copy of which standard terms and conditions has been furnished to Parent);
(xviii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xix) agreement relating to Intellectual Property Rights, including any agreement: (A) whereby the Company is granted a right or license with respect to any Intellectual Property Right of any other Person, but excluding any licenses for commercially available “off-the-shelf” Software (excluding Third Party Components) that is used in the Company’s internal “back-office” operations for which the Company pays an aggregate fee, royalty, or other consideration for any such Software or group of related Software licenses of no more than $10,000 in the aggregate annually; (B) whereby the Company grants to any other Person any right or license with respect to any Intellectual Property Right, but excluding Form Customer Licenses; (C) whereby the Company’s ability to use, own, license, transfer, enforce, or disclose any Intellectual Property Right, is affected, including settlement agreements; or (D) providing for the development, acquisition, or escrow of any Intellectual Property Right, independently or jointly, by or for the Company, including any joint venture agreements (the agreements referenced in any of (A)-(D), collectively, including all agreements not required to be scheduled due to qualifying under one of the exceptions referenced in any of the foregoing (A) or (B), the “Company Intellectual Property Agreements”);
(xx) settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company will have outstanding obligations after the date of this Agreement;
(xxi) power of attorney or other similar agreement or grant of agency;
(xxii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world or providing for exclusivity in any business line, geographic area or otherwise;
(C) Indebtedness involving liabilities in excess of $5 million;
(D) other than arising in the Ordinary Course of Business, any joint venture, partnership or other cooperative arrangement or similar arrangement involving a sharing of profits or otherwise;
(E) “most favored nations” provisions;
(F) other than arising in the Ordinary Course of Business, material third-party administration or other insurance policy administration relating to the Insurance Contracts;
(G) a capital maintenance contract, keepwell or similar agreement pursuant to which any Person has agreed to contribute capital or surplus to the Company or any Material Subsidiary or any capital maintenance contract or similar agreement pursuant to which the Company or any Material Subsidiary has agreed to contribute capital or surplus to any Person or guarantee the obligations of any Person under any insurance contract; or
(Hxxiii) contract or agreement containing any material amendmentrequirements supply or exclusivity provision or any “most-favored nation”, modification “most favored pricing”, or supplement similar clause in respect favor of any of the foregoingPerson.
(iib) All of the contracts, agreements, agreements and instruments and documents set forth or required to be set forth on Schedule 8.10(a), Schedule 8.11 and Schedule 8.23, together with any such contracts, agreements and instruments in effect at Closing that would have been required to be set forth thereon if in effect on the attached Schedule K date of this Agreement (eachcollectively, a and together with all other Company Intellectual Property Agreements, the “Material ContractContracts”) are valid, valid and binding and enforceable against the Company and, to the Knowledge of the Company, against the other parties thereto, in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and to general principles of equity. The Company has performed all material obligations required to be performed by it and is not in default under or breach of, nor in receipt of any claim of such default under or breach of, any Material Contract. No event has occurred which (with the passage of time or the respective giving of notice or both) would result in a default under or breach of, or permit the termination, modification or acceleration of any material obligation under, any Material Subsidiary, as applicableContract. The Company does not have any present expectation or intention of not fully performing on a timely basis all material obligations required to be performed by the Company under any Material Contract, and, to the Knowledge of the Company, there is no default under, or breach or cancellation or anticipated cancellation of, any Material Contract by the other parties thereto. The Company has furnished to Parent a true and correct copy of each other party thereto in accordance of the written Material Contracts, together with their respective terms (except (A) as limited by applicable bankruptcyall amendments, insolvencyextensions, reorganization, moratorium guarantees and other Laws binding supplements thereto, and an accurate description of general application affecting each of the enforcement of creditors’ rights generallyoral Material Contracts, (B) as limited by Laws relating to the availability of specific performancetogether with all amendments, injunctive relief waivers or other equitable remedies or (C) as would not be material to the Company and the Company Subsidiaries, taken as a whole); provided, that, for the avoidance of doubt, “Material Contracts” shall not include any contract that will be fully performed or satisfied as of or prior to the Initial Closing, or, if this Agreement is being executed and delivered with respect to an Additional Closing, as of or prior to such Additional Closing. Neither the Company nor any of the Material Subsidiaries is in material default under or in material breach of, or in receipt of any written claim of such material default or material breach, under any Material Contract. No event has occurred which, with the passage of time or the giving of notice, or both, would result in a material default, breach or event of noncompliance, in each such case, by the Company or any of the Material Subsidiaries under any such Material Contract. There are no outstanding, pending, or to the Knowledge of the Company, threatened material disputes with respect to any such Material Contract. True, correct and complete copies of each Material Contract have been made available to the Purchaserschanges thereto.
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